Delhi District Court
Sh. Narinder Singh Yadav vs Sh. Himmat Singh on 4 June, 2019
IN THE COURT OF SH. BIMLA KUMARI
ADJ 3 (Central), TIS HAZARI COURTS: DELHI
CS No. 32/18 (Old No. 185/2005)
New CS No. 11653/16/05
In the matter of :
Sh. Narinder Singh Yadav
S/o Sh. Sher Singh Yadav,
R/o H. NO. 258, Nangloi Jat Chowk,
Nangloi Delhi 110 041.
.... Plaintiff
VS.
1. Sh. Himmat Singh,
S/o Sh. Jug Lal Yadav
Permanent R/o Village Luhana,
District Mahender Garh,
Haryana.
Presently R/o 259, Village Nangloi Jat,
Nangloi, Delhi 110 041.
2. Sh. Sheotaj Singh,
S/o Sh. Jug Lal Yadav
R/o Village & PO Luhana,
District Mahender Garh,
Haryana.
3. Smt. Parmeshwari Devi,
S/o Sh. Sheotaj Singh,
R/o Village Luhana, District Mahender Garh,
Haryana.
Page No. 1 / 64
4. Smt. Bindu Yadav,
W/o Vishwas Yadav
Presently R/o 259, Village Nangloi Jat,
Nangloi, Delhi 110041. .... Defendants
Date of Institution : 02.08.2005
Arguments heard on : 04.05.2019, 24.05.2019,
28.05.2019 and 29.05.2019
Judgment Announced on : 04.06.2019
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION
AND
CS No. 31/18/2006
New CS No. 613572/2016
In the matter of :
Sh. Narinder Singh Yadav
S/o Sh. Sher Singh Yadav,
R/o H. NO. 258, Nangloi Jat Chowk,
Nangloi Delhi 110 041. .... Plaintiff
VS.
1. Sh. Vishwas Yadav
S/o Sh. Jug Lal Yadav
R/o 259, Village Nangloi Jat,
Nangloi, Delhi 110 041.
2. Ms. Bindu Yadav,
S/o Sh. Vishwas Yadav
R/o 259, Village Nangloi Jat,
Nangloi, Delhi 110 041.
Page No. 2 / 64
3. Smt. Parmeshwari Devi,
W/o Sh. Sheotaj Singh,
R/o H. No. 1861, Gurgaon, Haryana.
4. Sh. Sheotaj Singh,
S/o Sh. Jug Lal Yadav
R/o H. No. 1861, Gurgaon, Haryana. .... Defendants
Date of Institution : 17.05.2006
Arguments heard on : 04.05.2019, 24.05.2019,
28.05.2019 and 29.05.2019
Judgment Announced on : 04.06.2019
SUIT FOR DECLARATION, POSSESSION, MESNE
PROFITS AND PERMANENT INJUNCTION
AND
CS NO. 33/18 (Old no. 24/06)
New CS NO. 613311/16
In the matter of :
Smt. Parmeshwari Devi
W/o Sh. Sheo Taj Singh,
R/o H. No. 258, Nangloi Jat,
New Delhi
Also at :
1861, Sector - 4, Urban Estate,
Gurgaon, Haryana. ... Plaintiff.
Vs.
1. Smt. Kamla Devi,
W/o Late Shri Sher Singh,
R/o H. No. 258, Nangloi Jat, Jat Chowk,
New Delhi - 110041
Page No. 3 / 64
2. Shri Narinder Yadav,
S/o Late Sher Singh,
R/o H. No. 258, Nangloi Jat, Jat Chowk,
New Delhi - 110041. ... Defendants.
Date of Institution : 07.04.2006
Arguments heard on : 04.05.2019, 24.05.2019,
28.05.2019 and 29.05.2019
Judgment Announced on : 04.06.2019
SUIT FOR PARTITION, DECLARATION, RENDITION
OF ACCOUNT AND INJUNCTION
JUDGMENT
1. By this Common judgment, I shall dispose of all the three suits as they can be decided together conveniently because the parties in the suits are same and properties in are also same in all suits.
2. Brief fact of CS NO. 32/18 (New CS No. 11653/16/05 & Old CS No. 185/2005) titled as "Narinder Singh Yadav vs. Sh. Himmat Singh & Ors" are that the plaintiff, initially, filed the suit against the defendants Himmat Singh, Sheotaj Singh and Parmeshwari Devi. Thereafter, it came to his notice that Himmat Singh is also known as Vishwas Yadav. Hence, he moved an application under Order 6 Rule 17 CPC for amendment in the memo of parties, which was allowed by the Ld. Predecessor on Page No. 4 / 64 06.08.2005.
3. During the pendency of suit, it also came to the notice of plaintiff that defendant no. 2 sold the suit property to one Bindu Yadav, w/o defendant no. 1 on 07.04.2004 and therefore, plaintiff moved another application on 25.9.06 under order 6 rule 17 for impleadment of Bindu Yadav as defendant no. 4 in array of defendants, which was also allowed by Ld. Predecessor.
4. The case of the plaintiff, as per amended plaint, is that he is the owner and occupant of the properties bearing no. 258259, total measuring 400 Sq. Yds situated in Khasra no.126, Old Lal Dora of Village Nangloi Jat, Nangloi, Delhi 110041. Plaintiff is residing in property no. 258, while the property no. 259, is the adjoining property of property No. 258.
5. It is the case of the plaintiff that he inherited the said properties by virtue of registered Will executed by Smt. Parwati Devi w/o Late Sh. Nihal Singh Yadav on 22.10.2001, duly registered in the office of Sub Registrar, West District, Delhi. After the demise of Parwati Devi, who was maternal grandmother of plaintiff, he became legal and sole owner of the said properties. The property was Page No. 5 / 64 transferred in favour of the plaintiff on 22.10.2001 by Smt. Parwati Devi by executing an Agreement to Sell, GPA, Receipt for consideration, an Affidavit and Possession Certificate alongwith the 'Will'. The plaintiff and his mother were residing with Parwati Devi for the last so many years, as Parwati Devi had no son and they served the deceased till her last breath. Both the said properties, thus, developed upon the plaintiff, after her demise.
6. It is further case of plaintiff that defendant no. 3 is the real sister of the plaintiff's mother and the defendant no. 2 is the husband of defendant no. 3. The defendant no. 1 is the brother of the defendant no. 2. Smt. Parwati Devi during her life time, permitted defendant no. 3 to live, use and occupy the property bearing no. 259, as shown in the site plan, merely as licensee, as defendant no. 3 alongwih her husband i.e. Defendant no. 2 used to visit, occasionally, Delhi and they used to reside in the said property. Although the defendant no. 3 is the daughter of late Parwati Devi, but she along with her husband ie. Defendant no. 2 were not on good terms with late Smt. Parwati Devi and they used to harass her. In such circumstances, Parwati Devi, several times, asked defendant nos. 2 and 3 to vacate the property no. 259 but defendant nos. 2 and 3 always took time on one Page No. 6 / 64 pretext or the other. In the meanwhile, Parwati Devi died and the plaintiff became the sole and legal owner of the said property. He made requests to defendants no 2 and 3 to vacate and handover the possession of the suit premise but the defendant nos. 2 and 3 always took time to vacate the suit premise.
7. It is further case of plaintiff that defendant nos. 2 and 3 instead of vacating and handing over the possession of the suit premises to him, have brought the defendant no. 1 at the suit premises, who is now unauthorizedly and illegal occupying the suit premises, without the consent, permission and authority of the plaintiff. Since, all the defendants are in collusion and connivance with each other they, with their common motive and intention, are adopting illegal, unlawful means and tactics to grab the suit premises. The defendant no. 1 with the help of the defendant nos. 2 and 3 started carrying construction, additions, alterations in the suit premises, to which the plaintiff objected but the defendants did not pay any heed and threatened the plaintiff with dire consequences and asked the plaintiff to do, whatever, he might like.
8. It is further case of plaintiff that the defendants partly constructed a bathroom, in the open courtyard, on Page No. 7 / 64 the ground floor, as shown in red colour, in the site plan and started demolishing the roof of the front rooms of the property. However, on the strong objection and intervention of the respectable persons, the defendant no. 1 stopped the said unauthorized constructions and demolition on the evening on 30.07.2005. But, the defendant no. 1 once again started the illegal demolition and unauthorized construction in the suit premises on 01.08.2005. The plaintiff again objected to the wrongful and illegal act of the defendant no. 1, but he did not pay any heed. In the meanwhile, the defendant no. 2 also arrived at the spot and both the defendant nos. 1 and 2 threatened to complete the construction work in the suit premises and then to sell and transfer the possession of the same to third person.
9. The plaintiff also approached the local police to intervene and stop the defendants from wrongful and illegal act, but the police, appearing to be in connivance with the defendants, did not entertain the plaintiff and did not take any action against the defendants'. The defendants have, in fact, no legal right, title, interest, claim or concern, whatsoever, of any nature, in the suit property and the right of the defendant no. 3 is limited to the extent of mere user as licensee and in case the defendants succeed in their Page No. 8 / 64 nefarious motives and designs, the plaintiff will suffer irreparable loss and injury, which cannot be compensated in any term. The said action on the part of the defendants is illegal, unwarranted and against the canons of law. The plaintiff has no other efficacious or speedy remedy except to file the present suit.
10. The plaintiff has prayed that a decree for permanent injunction be passed in his favour and against the defendants, thereby restraining them, their associates, labourers, agents, goondas etc from raising any illegal and unauthorized constructions, demolition, addition, alterations etc, over the suit premises and not to sell, dispose, alienate, create any third party interest or part with the possession of the suit premises bearing no. 259, Village Nangloi Jat, Nangloi, Delhi, specifically shown in green colour, in the site plan.
11. He has further prayed to pass a decree of Mandatory injunction in his favour and against the defendants, thereby directing the defendants to remove the entire illegal, unauthorized construction, carried out by defendants in suit premises no. 259, Village Nangloi Jat, Nangloi, Delhi 110 041.
Page No. 9 / 6412. Defendant nos. 1 to 4 has filed the written statement to the amended plaint, wherein they have stated that the suit, as framed , is neither maintainable in the law nor on the facts and the same is liable to be dismissed; the suit is liable to be rejected for non compliance of order IV rule 1 (1), Order 6 rule 2 (3) and order 7 rule 11 (a) CPC;
that admittedly, the plaintiff is not in possession of the property and without seeking the relief of possession, no relief of injunction can be granted;
that suit is barred u/s 41 (h) and (e) of Specific Relief Act; that plaintiff is guilty of concealment of facts and suit is barred on the ground of suggestio falsi and suppresso vari; that the plaintiff is neither the owner nor has any concern with the property and no injunction can be granted in favour of a person, who has no interest in the property; that defendant no. 1 is the owner of property and no injunction can be granted against the true owner of the property; that the suit is barred under Order 7 rule 11 CPC as there is no cause of action in favour of plaintiff to file the present suit; that the suit is bad for misjoinder and nonjoinder of necessary parties, that the suit of the plaintiff is liable to be rejected against defendant nos. 2 and 3, as they have transferred the property to the defendant nos. 1 and 4, who Page No. 10 / 64 are occupying the same for its beneficial enjoyment and their names be deleted, as per provisions of order 1 rule 10 (2) CPC.
13. It is further case of defendants that defendant no. 1 made certain permissible repairs in the premises to keep it useable and habitable and being the owner and in absolute possession she has right to do so and no injunction can be granted on the alleged repairs; that suit is not properly valued for the purpose of court fee and jurisdiction; that the suit cannot be proceeded further, at the instance of the plaintiff, who is claiming his right on the basis of the alleged Will, executed by Parwati Devi in his favour, as Parvati Deiv was not competent to execute the will in respect of the suit property and she never executed any will; that Parwati Devi had already expressed her intention to devolve the property, after her death, as per Will dated 28.03.1980; that the suits regarding the Will and the property are pending in the court of Sh. Ravinder Dudeja, ADJ, Delhi and Sh. Daya Parkash, ADJ Delhi and Sh. K. S. Mohi, ADJ Delhi.
14. On merits, the defendant nos. 1 to 4 have denied the contents of the plaint of the plaintiff. They have submitted that 1/3 of the property no. 258 was already Page No. 11 / 64 transferred to Kamla Devi, for a consideration of Rs. 5,000/ by Registered Documents on 07.02.1975, who is not impleaded as a party. Smt. Parwat Devi was not in sound disposing mind and the documents dated 22.10.01 are under challenge. The plaintiff is quarrelsome person and never paid any regard to Smt. Parvati Devi and did not spare any occasion to taunt and disturb her. The defendant no. 1 and 4 are residing in the property no. 259 and defendant nos. 2 and 3 are residing at Gurgaon and usually visit the suit property.
15. It is further submitted by defendants that defendant no. 2 from his own funds acquired, developed and constructed property no. 259 and is living there for the last more than 45 years, alongwith his family members. Defendant no. 1 is the real brother of defendant no. 2, who sold the property no. 259, alongwith superstructure, to Smt. Bindu Yadav on 07.04.2004 and they are living, independently as owner and have every right thereupon. The defendants have prayed that suit filed by plaintiff be dismissed with heavey costs u/s 35A CPC.
16. Plaintiff has filed replication to the WS of defendant nos. 1 to 4, wherein he has denied the contents of WS and submitted that the relief of possession is not falling Page No. 12 / 64 within the pecuniary jurisdiction of the Court and therefore, he has not claimed the same from the Court and for that he has separately filed a suit for declaration and possession.
17. On merits, the Plaintiff has reiterated and reaffirmed the contents of his plaint.
18. From pleadings of the parties, the following issues were framed by Ld. Predecessor on 19.11.2010:
1.Whether the suit filed on behalf of the plaintiff is barred by Section 41 (e) of Specific Relief Act? OPD
2. Whether the suit is liable to be rejected u/o 4 rule 1 (1) read with Order 6 rule 2 (3) and order 7 rule 11 (e) CPC? OPD.
3. Whether the suit filed by the plaintiff is barred by order 2 rule 2 CPC? OPD
4.Whether the plaintiff is entitled to decree of permanent injunction against defendant in respect of premises bearing no. 259, Village Nangli, Delhi as shown in Green Annexed with the plaint, as payed for ? OPP
5.Whether the plaintiff is entitled to a decree of mandatory injunction against the defendant in respect of premises bearing no. 259, Village, Nangloi, Delhi as Page No. 13 / 64 prayed for ? OPP
6.Relief.
19. Now, I am coming to the facts of CS No. 31/18/2006 (New CS No. 613572/2016) titled as "Narinder Singh Yadav vs. Vishwas Yadav & Ors.".
20. In this case, the facts as per plaint are that the plaintiff is owner in possession of properties bearing no. 258259, jointly measuring 400 Sq. yards, situated in Khasra no.126, Old Lal Dora Village Nangloi Jat, Nangloi, Delhi 110041. The defendant nos. 1 and 2 have trespassed into one of the properties bearing no. 259, measuring approx. 220 Sq. yards, as more specifically shown as red in the site plan (herein after referred to as the suit property) with the help and connivance of defendant nos. 3 & 4. The defendant nos. 3 and 4 are the maternal aunt and uncle respectively of the plaintiff. Defendant no. 1 is the brother of defendant no. 4 and husband of defendant no. 2.
21. It is the case of the plaintiff that he purchased the said properties for a valuable consideration of Rs. 90,000/ from Smt. Parwati Devi W/o Sh. Nihal Singh, who was his maternal grand mother. Both the properties were purchased jointly through an Agreement To Sell, Registered Page No. 14 / 64 General Power of Attorney and Registered Will, all dated 22nd October 2001, duly executed by Smt. Parwati Devi, in his favour. Smt. Parwati Devi also delivered the possession of the properties to plaintiff. Smt. Parwati Devi appeared in person before the SubRegistrar II west district Delhi for the registration of the Will and General Power of Attorney on 22nd October 2001.
22. It is further the case of the plaintiff that since, Parwati Devi had no male issue to look after her and she was old and unable to do her chores, independently, and in view of his caring attitude and conduct towards her, she inducted the plaintiff and his mother, way back in the year 1964 in the property no. 258. Smt. Parwati Devi, at the persistent requests of her other daughter ie. Defendant no. 3 allowed her to live in a part of the suit property, temporarily, along with defendant no. 4, as she (defendant no. 3) was not keeping well and used to come to Delhi, very often. The property, in suit, was only partly built up, to the extent of approx. 70 Sq. feets, which part only was allowed for temporary use to the defendant No. 3 and the entire remaining portion, which was vacant and open was never allowed to her. The suit property and property no. 258 are adjacent and the open portion of the suit property was in Page No. 15 / 64 occupation of plaintiff and his mother.
23. It is further the case of plaintiff that Smt Parwati Devi asked defendant no. 3 to vacate the portion of the suit property, under her occupation and to hand over the same to the plaintiff. However, she with malafide intention kept requesting for more time to vacate the same on one pretext or the other. Unfortunately, her maternal grandmother, Smt. Parwati Devi died on 11th December 2001 and till her last breath, plaintiff and his family served her. After the death of Smt. Parwati Devi, plaintiff, time and again, requested the defendant no. 3 to vacate the portion of the suit property, which was allowed to her by Smt. Parwati Devi, temporarily, but every time she prayed for some more time on one or the other pretext.
24. It is also the case of plaintiff that defendant nos. 3 & 4, in July 2005, illegally inducted the defendant no. 1 and 2 in the portion of the suit property although they had no authority to allow such induction and trespass. After their induction, the defendants no.1 and 2 with the active help and connivance of defendants no. 3 & 4 started to put up some unauthorized construction in the open and vacant portion of suit property, in order to trespass the same and also started making material alterations in the earlier built Page No. 16 / 64 up portion. The plaintiff requested defendants no.1 and 2 to stop the said encroachment, construction as well as alterations and to vacate the property in the suit, but all in vain. Plaintiff duly intimated them that he had purchased the said property for a valuable consideration and was the owner of the same but all that was of no effect to them. The defendant nos. 1 and 2 instead of vacating the property threatened plaintiff that they would transfer the same to some other person, along with the occupation, after the construction and the alterations were completed. Since the defendants No.1 did not pay any heed to plaintiff requests and was going ahead with the encroachment, construction and material alterations in the suit property and also threatened to the plaintiff to transfer the same, the plaintiff was forced to file a suit No. 185/05 for permanent and mandatory injunction. The defendant no. 1 filed the WS in that suit, whereby she (defendant no. 1) claimed himself to be the owner of the suit property stating that his wife i.e. defendant no.2 had purchased the same from defendant No
4. The defendant No. 1 also filed the photocopies of General Power Of Attorney dated 7th February 1975, Will dt. 28th March 1980, allegedly executed by Smt. Parwati Devi and photocopies of Agreement to Sell, General Power Of Page No. 17 / 64 Attorney, Affidavit, Possession Letter and Receipt executed by defendant no. 4 in favour of defendant no 2, and the Abadi Certificate dated 22nd June 2004, which are all false, fabricated, illegal, invalid and were executed not only without authority and competence but were also not executed and registered properly, and are therefore, invalid, incompetent, inoperative and having no value.
25. The plaintiff was not aware of the defendant no.4 or anybody having executed aforesaid illegal, invalid and incompetent documents in favour of the defendant no. 2 regarding the suit property and therefore he did not implead her as a party to the aforesaid said. However, on getting such knowledge he moved an application in that suit for amendment of the plaint and to implead defendant no. 2 as a party in the suit and the said application was allowed and the defendant no. 2 was impleaded as a party.
26. It is further case of the plaintiff that since he is the absolute owner of suit property, the defendants can not use the same and can not continue in occupation thereof without his consent and permission, which he had not granted. He has also filed a petition for grant of probate of the last and final 'Will' dated 22nd October, 2001 of late Smt. Parvati Devi in the Court of A.D.J, Delhi. That the Page No. 18 / 64 defendants no. 1 and 2 have trespassed into his property, in the July 2006 and since then they are in occupation thereof without his consent and permission and are causing wrongful loss to him to the tune of at least Rs.1000/ per month, which is the minimum rent of the property in the locality.
27. The defendants have no right, title or interest in the suit property and the occupation of defendant nos. 1 and 2 is unauthorized and only a tress pass, through a conspiracy and malafide design with defendant nos. 3 and 4. The plaintiff is entitled to the declaration of ownership, possession and mesne profits as well as permanent injunction.
28. Defendant nos. 1 to 4 have filed the written statement, wherein they have submitted that the suit of the plaintiff is not maintainable as framed and is liable to be dismissed. The suit is relating to the immovable property and as per law, the description and dimension of the property has not been mentioned in the plaint, hence the plaint is liable to be rejected; that the suit is not properly valued for the purpose of court fee and jurisdiction; that property is under valued and as per Suit Valuation and Court Fees Act, the property should be valued at the market Page No. 19 / 64 rate ; that in the valuation clause, the details of the value of the property has not been incorporated, which renders the suit liable to be rejected; that the plaintiff has concealed material facts from the Court; that the suit is barred under Order 2 Rule 2 CPC, as the plaintiff intentionally filed a suit for inunction and the relief claimed, in the present suit, was well with in the knowledge of the plaintiff but he did not claim the same in suit no. 185/05 titled as Sh. Narinder Singh Yadav Vs. Vishwas Yadav and others.
29. It is further the case of defendants that the plaintiff is neither owner nor has any concern in the property, so he has no locus standi to file the present suit; that the suit is without any cause of action and the same is liable to be dismissed U/o 7 Rule 11 CPC.; that the defendant nos. 3 and 4 have no concern or interest in the property, after the execution of documents of ownership in favour of defendant no. 2; that the defendant nos. 3 & 4 are neither necessary nor proper party, hence, the suit is liable to be dismissed; that the suit is bad for misjoinder of causes of action; that the suit is bad as no declaration can be made U/s 34 of the Specific Relief Act; that the suit is liable to be stayed under Section 10 CPC, as the matter is already sub judice before various courts and the parties to the suit and Page No. 20 / 64 the issues involved herein are the same and two parallel proceedings cannot be initiated.
30. On merits, the defendants have denied the contents of the plaint and submitted that the defendant no. 4 purchased property No. 259 from the previous owner and the property was adjacent to property No. 258. The defendant No. 3 was the coowner in property No. 258 and defendant no. 4 was the exclusive owner of property no 259; that suit of plaintiff is barred under section 41 (h) of Specific Relief Act. The suit of plaintiff is liable to be dismissed with special costs, as are provided under section 35 A CPC.
31. Plaintiff has filed the replication to the WS of defendants, wherein it is submitted that the WS has not been properly and legally verified. All the defendants have not filed the required mandatory supporting affidavits. The provisions of order 2 Rule 2 are not attracted to the present suit as the said court did not have the monetary jurisdiction to try the aspects, involved in the present suit. The present suit is totally independent and different from the earlier suit; that the cause of action arose, for the present suit, when the D1 and 2, in the said case, filed certain false documents and claimed themselves to be the owner of the Page No. 21 / 64 property; that the plaintiff is the owner of the property and is having all the valid documents in his faovur. The present suit is not covered within the ambit of section 10, as the subject matter of the cases and the array of the defendants are also different, in the different suits. The properties as well as the cause of action involved are also different.
32. From the pleadings of the parties, the following issues were framed by Ld. Predecessor on 17.10.2006:
1. Whether the suit filed by the plaintiff against the defendant is barred u/o 2 Rule 2 in view of proceedings in suit no.
185/05 titled as Sh. Narinder Singh Yadav vs. Vishwas Yadav & others now pending in the Court of Sh. Shailender Malik, Civil Judge, Delhi? OPD
2. Whether suit filed by the plaintiff against the defendant is not properly valued for the purposes of court fee and jurisdiction? OPD
3. Whether the plaintiff is entitled for the relief of declaration as claimed ? OPP
4. Whether the plaintiff is entitled for a decree of mesne profits/ damages as claimed? If so at what rate? OPP Page No. 22 / 64
5. Whether the plaintiff is entitled for the relief of permanent injunction as claimed? OPP
6. Relief.
33. To prove his case, the plaintiff has examined five witnesses. They are as under:
1. Sh. Yashpal Arora (PW1)
2. Sh. Narinder Singh Yadav (PW2)
3. Sh. B. P. Singh (PW3)
4. Sh. Rajinder Singh (PW4)
5. Sh. Dharam Pal Singh (PW5)
34. Defendants have examined three witnesses in their defence. They are as under:
1. Sh. Sheotaj Singh (DW1)
2. Sh. Ratan Singh (DW2)
3. Sh. Suresh (DW3)
35. It is worth noting that On 16.11.2011, Ld. Counsel for the parties requested the Court that the evidence recorded in this case i.e. CS No. 31/18/2006 titled as "Narinder Vs. Vishwas Yadav & Ors." be read as evidence in Suit No. 32/18 (New CS No. 11653/16/05 & Old No. 185/05), as evidence in both the cases was similar. Accordingly, Ld. Predecessor also ordered that evidence recorded in Suit no. 31/18/2006 titled as "Narinder Vs. Vishwas Yadav & Ors." will also be read as evidence in Suit No. 32/18 (New CS No. 11653/16/05 & Old No. 185/05) for Page No. 23 / 64 decision of the issues.
36. Now, I am coming to the facts of CS NO.
33/18 (New CS No. 613311/16 & Old No. 24/2006) titled as "Parmeshwari Devi vs. Kamla & Ors".
37. Brief facts of this case as set out in the plaint, are that Rao Nihal Singh was the owner and in possession of House No. 258 situated in the old abadi of viallage Nangloi Jat, New Delhi and agriculture land bearing Khasra Nos. 6/13(416), 6/14(416, 6/15(416), 46/16/1(28), 46/16/2(28), 9/24(504), 36/2(37), 36/3(412), 36/4(412), 36/4(302), 36/8(302), 36/8/2(013), 36/8/3(112), 36/9/1(218), 36/9/2(2
08), 36/10(40), 36/11(302), 36/12(304), 36/13(214), 61/19(416), 61/22(416), 61/23(410), 64/2(48), 73/10(416) having ½ share in the land, situated in the revenue estate of village Nangloi Jat, New Delhi.
38. That U.O.I for the planned Development of Delhi acquired the part of the land and the secretary, Land & Building, allotted a plot, bearing No. 4, situated in Pkt. A, Sector23, Rohini, under Residential Scheme, in lieu of the acquired land. It is the case of plaintiff that Smt. Parvati Devi, Smt. Kamla Devi and Parmeshwari Devi (the plaintiff) succeeded all right, title and interest of Late Nihal Page No. 24 / 64 Singh, as per provisions of section 8 of Hindu Succession Act and the land was devolved upon them in equal shares.
The house no. 258 consisting of 300 sq. yds. was divided among the LRs of deceased Nihal Singh, in three equal shares of 100 sq. yds. each and the actual physical possession was assigned to Smt. Parvati Devi, Smt. Kamla Devi and Smt. Parmeshwari Devi (the plaintiff). Later on, she (the plaintiff ) raised the construction in her portion; that Smt. Parmeshwari Devi in order to maintain peace and harmony, executed General Power of Attorney in favour of Smt. Kamla Devi, which was duly registered in the office of Sub Registrar, Delhi; that Smt. Parvati Devi considering the welfare of her two daughters also executed a Will on 28.03.1980, devolving all her properties, upon her two daughters, namely Smt. Kamla and Smt. Parmeshwari Devi in equal shares; that after the demise of Smt. Parvati Devi the plaintiff and defendant no. 1 got 1/2 share in 1/3rd share of Smt. Parvati Devi in H.No. 258, also 1/2 share in plot No. 4, Pkt.4A, Sector23, Rohini, Delhi; that the properties are joint and are not partitioned till date, by metes and bounds; that the parties are in the joint possession of the properties, as no apportionment has been made in the aforesaid properties to the extent of 1/2 each.
Page No. 25 / 6439. It is further case of plaintiff that her husband Shri Sheo Taj Singh purchased an adjacent property No. 259, situated in Lal Dora of Village Nangloi Jat and, later on, raised the construction upon the land of H.No. 258, which had fallen to her share and also upon 51 sq. yds. of land of house No. 259, which was later on, transferred to Smt. Bindu Yadav, W/o Shri Vishwas Yadav. The defendant no. 2 is the son of defendant no. 1 and is living with defendant no. 1 and is having no right in property No.258. The defendant no. 2 with malafide intentions and oblique motives filed a civil suit bearing no. 185/05 against the plaintiff and others, claiming himself to be owner of the property, wherein his application for interim injunction was dismissed by the Court vide order dated 10.08.2005. The defendant no. 2 also filed probate petition no. PC 150/2006 in the court of Shri Ravinder Dudeja, Addl. District Judge for the grant of probate of the alleged Will dated 22.10.2001. The plaintiff filed the detailed objections challenging the Will on the grounds as under:
(a) that Smt. Parvati Devi was not the owner of H. No. 259, at any point of time, and was having only 1/3rd share in property No. 258 Nangloi Jat, Delhi ;
(b) that there is no exclusion clause in the alleged Page No. 26 / 64 Will as to why the property is given to Shri Narinder Yada;
(c) that Smt. Parvati Devi earlier executed a Will in favour of her two daughters, which was duly registered with the office of Sub Registrar Delhi in the presence of marginal witnesses, but in the present Will, there is no mention of earlier Will, which created doubt upon the validity of the Will;
(d) that Smt. Parvati Devi was suffering from serious ailments. She was not in sound disposing mind and was bed ridden for the last six months. There was no occasion for her to execute the Will and Shri Narinder Singh Yadav impersonified Smt. Parvati Devi;
(e) that the alleged witnesses of the Will are the pocket witnesses of Narinder Singh Yadav and their names have been impleaded and mentioned in the Will only to grab the property;
(f) that the thumb impression of the Will is not of Smt. Parvati Devi and the Will has been procured with the malafide intention to grab the property and to create interest in the property;
(g) that relations between Smt. Parvati Devi and Narender Singh Yadav were very strained and Narinder Page No. 27 / 64 Singh never provided any comfort to Smt. Parvati Devi, at any point of time, so there was no reason or ground to execute the Will.
40. It is further case of plaintiff that Narinder Singh Yadav has mentioned in suit No. 185/05 about the execution of certain documents and transfer of property in his favour by Smt. Parvati Devi and specifically mentioned, in para2 of his plaint, that Smt. Parvati Devi executed agreement to sell, GPA, Receipt, Affidavit and Possession Certificate alongwith Will. These documents were also forged, fabricated and procured documents, which were created only to claim the property and are null and void. Smt. Parvati Devi had already executed a registered Will in favour of her two daughters, in equal shares and was left with no interest in the property. Smt. Parvati Devi never disclosed her mind, either to the plaintiff or any body else, who used to visit her, to execute any document in respect of her share in the property and the documents are only a creation of mischievous mind of defendant no. 2. The documents are illegal, null and void and not binding upon the plaintiff, in any manner, whatsoever, and do not create any interest in favour of defendant no. 2.
41. It is further case of plaintiff that at the time of Page No. 28 / 64 death of Smt. Parvati Devi, the defendant no. 1 and 2 were in the house. They misappropriated the gold and silver ornaments and other valuable items belonging to Smt. Parvati Devi, in which the plaintiff is having 1/2 share. The plaintiff asked the defendants to furnish the details and to give her share in the movable properties, left behind by Smt. Parvati Devi, as per her share and also as per intention of the deceased Smt. Parvati Devi. The defendants jointly and severally admitted the claim of the plaintiff but, till date, no apportionment has been made.
42. The plaintiff has sought that directions be given to defendants to furnish the details of the movable properties, which came in their hands, after the demise of Smt. Parvati Devi and to make apportionment of the said items and deliver the same to the plaintiff, as per her entitlement and claim.
43. It is further case of plaintiff that defendant no. 1 and 2 with malafide intentions and oblique motives, let out the first floor of the share of Smt. Parvati Devi, in property No. 258, Nangloi Jat, Delhi, at the monthly rent of Rs. 1,000/ PM, besides other charges and did not give any share to the plaintiff despite her entitlement. The defendants be directed to furnish affidavit in respect of the Page No. 29 / 64 details of the rental income, received by them and the same be given to the plaintiff, as per her entitlement.
44. It is also case of plaintiff that the defendant no. 1 and 2 in furtherance of their common intention brought some property dealers, at the site and from their conversation, it was revealed that they wanted to sell the property, in order to deprive the plaintiff from her share in property. They also extended threats and asked her to forget about the property, otherwise, she would face the dire consequences. The aforesaid acts of defendants are illegal, high handed, arbitrary, malafide and against the law. The defendants refused to assign any share to the plaintiff.
45. The plaintiff has thus prayed as under:
(i) that a decree of partition be passed in favour of the plaintiff and against the defendant no. 1 in respect of 1/3d share in H. NO. 258, Nangloi Jat, Jat Chowk, Delhi41 belonging to Smt. Parvati Devi by metes and bounds and in respect of Plot No. 4,Pkt 4, A Sector No. 23, Rohini, Delhi and thereafter a Local Commissioner be appointed to suggest the mode of partition of above properties and if the properties are not partitionable, then the same be put to auction, with right of the parties to give the bid, and the Page No. 30 / 64 sale consideration be partitioned, in equal shares and a final decree to that effect by actually putting the parties in possession of the same.
(ii) that a decree directing the defendants jointly and severally to file in affidavit, the true and correct inventories of movable properties, left by Smt. Parvati Devi and also the rental income received by them and the same be apportioned, as per share and claim of parties.
(iii) that a decree declaring that the Will dated 22.10.2001, allegedly executed by Smt. Parvati Devi and registered in the office of Sub Registrar, Delhi as document No 34259, Addl. Book No,. 3, Volume No. 5455, on pages 57, dated 22.10.2001 as null and void and not binding, in any manner, whatsoever and the same be cancelled from the record of sub registrar.
(iv) that a decree declaring that the documents purportedly executed by Smt. Parvati Devi in favour of Shri Narinder Singh Yadav dated 22.10.2001 consisting of General Power attorney, Agreement to Sell, Receipt of Consideration, Affidavit and Possession Certificate mentioned in para 2 of suit No. 185/05 as null and void and same be cancelled from the record of sub registrar, Page No. 31 / 64 Delhi.
(v) that a decree restraining the defendants, their agents, associates, representatives, attornies and persons claiming through them, from selling, transferring, mortgaging , alienating , raising construction, digging in or any part of property no. 258, falling to the share of Smt. Parvati Devi and plot no. 4, Pkt 4 A, Sector23, Rohini, in any manner, whatsoever.
46. The defendant nos 1 and 2 have filed the Written statement, wherein they have stated that no cause of action what so ever, has arisen to the plaintiff to file the suit and the suit be dismissed with exemplary costs; that the plaintiff has no locus standi to file the present suit, as the property has been legally, validly and competently transferred in favour of the defendant no. 2, by its owner Smt. Parvati Devi, by executing the documents, including Will and by getting the same registered, by personally appearing, before Sub Registrar, Delhi; that there are noticeable differences between the notice served upon the defendants, before filing the suit by the plaintiff and the plaintiff is estopped from taking any pleas, contrary to the contents of the notice and thus the suit, as such, is barred by estoppel; that since the petition, for the probate of the Page No. 32 / 64 Will, which was duly executed and registered by the owner of the property, in favour of the defendant no. 2, has already been filed and is pending disposal before the court of Ld. ADJ, Delhi, the suit is not maintainable; that the defendant no. 2 has already filed two suits with respect to property No. 259 and the suit has been filed by the plaintiff as counter blast to the said suits and to the probate petition; that the plaintiff has no right, title or interest in the property in suit and she has not come to the court with clean hands; that the suit has not been properly valued for the purpose of court fees and jurisdiction; that the suit is not maintainable in the absence of site plan.
47. On merits, the defendants have denied the facts, which are stated by plaintiff in the plaint. They have submitted that Rao Nihal Singh was not owner in possession of House No. 258 situated in the Old Village Abadi Nangloi Jat. The said house was owned and possessed by Smt. Parvati Devi. The plaintiff has not stated, as to who was the owner of the remaining ½ share of the agricultural land. They have submitted that the Plot no. 4, situated in Pocket4A, Sector23 Rohini was allotted to Smt. Parvati Devi, as stated by the plaintiff herself in the notice dated 20.01.2006 which was served upon the Page No. 33 / 64 defendants. The plaintiff has not filed any document pertaining to the ownership of house no. 258 Old Abadi Village Nangloi Jat or of the agricultural land or of Rohini plot. Sh. Rao Nihal Singh was the husband of Smt. Parvati Devi and they had two daughters namely Smt. Kamla Devi and Smt. Parmeshwari Devi. Sh. Rao Nihal Singh had no right, title or interest in House No. 258, or to the agricultural land or to the Rohini plot. The house no. 258 stands transferred in favour of defendant no. 2 by Smt. Parvati Devi. In fact, house No. 259 was also owned by Smt. Parvati Devi, who transferred both the properties i.e. house no, 258 and 259 in favour of defendant no. 2. The defendant no. 2 has separately filed a suit for declaration, possession, mesne profits and permanent injunction against Sh. Vishwas Yadav and his wife Smt. Bindu Yadav.
48. The defendants have also submitted that no such Will was executed by Sh. Parvati Devi. In any case, the admission of the plaintiff, of the execution of the Will of the property by Smt. Parvati Devi also amounts to admission of the ownership of the plot by Smt. Parvati Devi. Further, the said Will, if any, stands superceded by the Will executed by Parvati Devi in favour of defendant no. 2. Defendant no. 2 is the owner in possession of the entire property and plaintiff Page No. 34 / 64 has no right or interest therein. Defendant no. 1 has no objection to share the Rohini Plot, in equal ownership with the plaintiff.
49. The defendants have further submitted that Smt. Parvati Devi executed the Will with a sound and disposing mind and was in proper health. The Will has been witnessed by competent persons, in accordance with law and the plaintiff is unnecessarily making averments, which are malafide and self serving.
50. The defendants have stated that they are fully entitled and empowered and within their legal rights to let out any part of the suit property to any person.
51. Plaintiff has filed replication to the written statement of defendants, wherein she has denied the facts, mentioned by defendants and reiterated and reaffirmed the facts, mentioned by her in her plaint. She has also stated that the pendency of probate proceedings has no concern with the present suit, which is based upon a different cause of action and the civil court is competent to adjudicate the matter. She has further stated that site plan is already on record and even the property is identifiable by its municipal number. Smt. Parvati Devi was having no private property Page No. 35 / 64 and she never acquired any property but only succeeded the share to the extent of 1/3 share in the estate of late Rao Nihal Singh. House No. 258 was never transferred in the name of defendant no. 2. Smt. Parvati Devi had already made arrangement during her lifetime and the plaintiff is having ½ out of 1/3 share of Smt. Parvati Devi. The documents allegedly executed in favour of defendant no. 2 are false and frivolous documents and no right can be conferred on the defendant no. 2 on the strength of these documents. Smt. Parvati Devi never remained in the possession, occupation and was not having any concern with property no. 259, which was exclusive property of Shri Sheo Taj Singh, husband of the plaintiff and which has now been transferred in favour of Smt. Bindu Yadav and Vishwas Yadav.
52. From the pleadings of parties, following issues were framed by Ld. Predecessor on 17.03.2010:
1. Whether the plaintiff has no locus standi to file the present case? OPD
2. Whether the suit is not maintainable in view of pendency of Probate proceedings in the court of Sh. Ravinder Dudeja, ADJ, Delhi? OPD Page No. 36 / 64
3. Whether the suit is not been properly valued for the purpose of court fees and jurisdiction? OPP (should be OPD)
4. Whether suit is not maintainable in the absence of proper site plan, attached to the plaint? OPD
5. Whether the plaintiff is entitled to the decree of partition? OPP
6. Whether the plaintiff is entitled to the declaration as sought?
7. Whether the plaintiff is entitled to the injunction and rendition of accounts?
8. Relief.
53. To prove her case, the plaintiff has examined four. witnesses. They are as follows:
1. Sheotaj Singh, husband of Parmeshwari Devi (PW1),
2. Rattan Singh (PW2)
3. Mahender Singh (PW3), and
4. Suresh (PW4).
54. The defendants have examined two witnesses in their defence. They are as under:
1. Narinder Singh Yadav (DW1)
2. Rajender Singh (DW2) Page No. 37 / 64
55. I have heard arguments from Ld. Counsel for parties and also gone through the files of all the suits.
56. It is worth noting that on 05.10.2016 the plaintiff of this Suit i.e. CS No. 33/2018 (Old No. 24/2006) through her Attorney Sheotaj Singh has dropped the relief vide separate statement in respect to property bearing Plot no. 4, Pocket4A, Sector23, Rohini and the relief of declaration of WILL, as per prayer clause no. 21(b) of the plaint, from the Relief Clause.
57. Hence, this judgment will now deal only with the other reliefs of prayer clause.
58. My issue wise findings in the CS No. 32/18 (New CS No. 11653/16/05 & Old CS No.185/2005) is as under :
59. ISSUE NO. 1:
60. In the present case, the onus to prove this issues was on the defendants. However, they have not led any evidence in this regard and did not prove as to how the suit filed by the plaintiff is barred by section 41 (e) of the Specific Relief Act. It is worth noting that during final arguments, Ld. Counsel for the defendants has fairly Page No. 38 / 64 conceded that no evidence has been led by the defendants to prove this issue.
61. Hence, in view of above facts, issue no. 1 is decided in favour of the plaintiff and against the defendants.
62. ISSUE NO. 2:
63. The onus to prove this issue was also on defendants. However, during final arguments, Ld. Counsel for the defendants did not press this issue.
64. Accordingly, issue no. 2 is disposed of as not pressed and the same is also decided in favour of the plaintiff and against the defendants.
65. ISSUE NO. 3 of CS No. 32/18 (Old CS No. 185/2005): & ISSUE NO. 1 of CS No. 31/18/2006:
66. I am taking both the issues together as both these issues are same in both the civil suits.
67. It is the case of the defendant that plaintiff has not sought all the reliefs in the present suit, as he has not sought the reliefs of possession of suit property and only Page No. 39 / 64 sought the reliefs of permanent and mandatory injunction.
68. In "Ashoka Builders & Promoters & Anr. vs. Edward Keventer (Successors) P. Ltd. & Ors." 51 (1993) DLT 421, it has been held by Hon'ble High Court of Delhi that : "...that in order that a plea of a bar under Order 2, Rule 2(3) CPC should succeed, the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief and ; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. Unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based, there would be no scope for the application of the bar."
69. Further, in "Alka Gupta vs. Narender Kumar Gupta" II (2012) SLT 412 SC, it has been held by the Hon'ble Supreme Court as under: "...The object of Order 2 Rule 2 of the Code is two Page No. 40 / 64 fold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 of the Code is to bar a plaintiff, who had earlier claimed certain remedies, in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct cause of action."
70. While relying upon its earlier decision in Gurbux Singh v. Bhoora Lal, AIR 1964 SC 1810, the Supreme Court has further observed that: "In order that a plea of a bar under Order 2 Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out, (1) that the second suit was in respect of the same cause of action, as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief, the plaintiff without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to Page No. 41 / 64 establish primarily and to start with, the precise cause of action upon which the previous suit was filed for, unless there is identity between the cause of action, on which the earlier suit was filed and that on which the claim in the latter suit is based, there would be no scope for the application of the bar."
71. In the present case, the plaintiff Narinder Singh (PW2) Yadav has deposed in his affidavit of evidence Ex.PW2/A that he is the owner of properties 258 and 259 jointly measuring 400 sq. yards situated in Khasra No. 126, Old Lal Dora Village Nangloi Jat. He is in exclusive and physical possession of property No. 258, Nangloi Jat and is in constructive and legal possession of Property No. 259, Nangloi Jat. He has further deposed that Sh. Vishwas Yadav and Bindu Yadav have illegally and unauthorizedly have entered into the suit property i.e. property No. 259, Nangloi Jat (herein after referred to as the suit property) with the help and connivance of Smt. Parmeshwari Devi and Sh. Sheotaj Singh. They are trespassers in the property. Both the defendants i.e. Vishwas Yadav and Bindu Yadav have no right, whatsoever, to live and reside in his property. He has further deposed that he had purchased both the properties for a valuable consideration Page No. 42 / 64 of Rs. 90,000/ from Smt. Parvati Devi, who was her maternal grandmother, through an Agreement to Sell Ex.PW2/1, Registered Power of Attorney Ex.PW1/1, Registered Will Ex.PW1/2 duly executed by Smt. Parvati Devi in his favour for 22.10.2001 against the payment of Rs. 90,000/. Smt. Parvati Devi also delivered the possession of the property to him on the same day.
72. He has further deposed that the suit property was only partly built up to the extent of approximately 70 sq. yards and that part only was given to defendant no. 3 (Parmeshwari Devi) for use of temporary basis and the remaining portion, which was vacant and open, was not given to defendant no. 3 for her use. After both the parties were sold and transferred to him, Smt Parvati Devi asked defendant no. 3 to vacate the portion of the suit property under her occupation and to handover the same to him but she did not handover that portion to him and kept on requesting some more time to vacate the same. After the death of Smt. Parvati Devi on 11.12.2001, he requested defendant no. 1 to vacate the portion of the suit property, which was allowed to her by Smt. Parvati Devi, temporarily, but every time she prayed for some more time to vacate the same.
Page No. 43 / 6473. PW1 has further deposed that instead of vacating the portion of the suit property under her occupation, the defendant no. 3, with the help and connivance of her husband i.e. Sheotaj Singh illegally and unauthorisedly inducted defendants Vishwas Yadav and Bindu Yadav in the suit property, somewhere in July 2005. Although, she has no right and authority to the property to allow such induction and trespass. After the induction, they, started raising some unauthorized construction in the open and vacant portion of the suit property and also made material alterations in the portion, which was earlier built up. He requested the defendants to stop the encroachment, construction as well as alterations and asked them to vacate the suit property but all in vain. He duly intimated the defendants Vishwas Yadav and Bindu Yavav that he purchased the suit property for a valuable consideration and is the owner of the same but all that was of no effect to them.
74. PW1 has further deposed that the defendants instead of vacating the property threatened him that they will transfer the property to some other person alongwith occupation after the construction and alterations were complete. But the defendants did not pay any heed to his Page No. 44 / 64 request and were going ahead with the encroachment, construction and material alterations in the suit property and threatened him to transfer the suit property to some other person. He also approached the local police for intervention but the police did not take any action against the defendant for the reason best known to them.
75. It is note worthy that in his crossexamination, the plaintiff (PW2) has clearly admitted that he had filed a suit bearing No. 185/05 in the court of the then Civil Judge. He has further admitted that his injunction application for stay was dismissed by the Court vide order dated 10.08.2005, which is MarkX.
76. It is note worthy that in his crossexamination the plaintiff (PW2) has clearly admitted that he had filed a suit bearing No. 185/05 in the court of Ld. Civil Judge. He has further admitted that his injunction application for stay was dismissed by the court vide order dated 10.08.2005 which is MarkX.
77. PW2 has further deposed in his affidavit of evidence Ex.PW2/A that his injunction application was dismissed on a technical ground as he did not seek the main relief i.e. possession and also could not file the probate of the Will of Smt. Paremeshwari Devi (should be of Parvati Page No. 45 / 64 Devi). He has further deposed that he is the sole owner of the suit property and defendants cannot use the same and cannot continue in occupation thereof without his consent and permission. The defendants have trespassed into his property in July 2006 and since then they are in the occupation thereof and wrongfully causing loss to him to the tune of Rs.1,000/ per month, which is minimum rate of such property in the locality. He is entitled to the relief of declaration of the ownership of the suit property and possession thereof as well as mesne profit @ R.s 1,000/ per month from the month of July 2006 as well as permanent injunction.
78. In crossexamination by Ld. Counsel for defendant (dated 09.11.2009), PW1 has admitted that there is no sale deed in his favour in respect of the Properties No. 258 & 259, Nangloi Jat. He had not seen that the electricity and water bill with respect to Property No. 259 were in the name of Parvati Devi. He has neither brought any Bill in the name of Parvati Devi in respect of the suit property nor has filed the same on record. He has admitted that water and electricity connections in the suit property are in the name of Sh. Sheotaj Singh.
79. Now, a perusal of order Mark'X' passed by the Page No. 46 / 64 then Ld. Civil Judge in Suit No. 185/2005 shows that Ld. Civil Judge was of the opinion that plaintiff was having no prima facie case in his favour and was not entitled to any relief and his application under section 39 Rules 1 and 2 CPC was dismissed. Ld. Civil Judge was of the opinion that the plaintiff has claimed his ownership on the basis of the Will dated 20.10.2001 which was executed by Smt. Parvati Devi to the exclusion of her own LRs i.e. defendant no. 3, namely, Smt. Parmeshwari Devi, which created a shadow over the genuineness of the suit property and the plaintiff also did not file the probate in respect of the Will. Ld. Civil Judge was of the view that the right / title of the plaintiff, regarding the suit property No. 259 is in dispute and until and unless, the plaintiff sought the relief of possession, he could not claim the injunction against the defendants. Ld. Civil Judge also observed that plaintiff was having alternative efficacious remedy to seek the possession as well as the relief of injunction in the suit and the Suit No. 185/2005 filed by the plaintiff was held being barred under section 41 (h) of the Specific Relief Act 1963.
80. It is worth noting that it is admitted case of plaintiff that he was not in physical possession of suit property and defendants encroached the same by raising Page No. 47 / 64 unauthorized construction and also threatened the plaintiff to transfer the suit property to third person after completion of construction.
81. Since, it is the case of plaintiff that he is the owner of suit property, as he purchased the same from Smt. Parvati Devi on 22.10.2001 and he did not seek the relief of possession in the earlier suit i.e. 32/18(Old CS No. 185/2005) in respect of the suit property, I am of the considered view that there was identity between the cause of action in both the suits and the second suit filed by plaintiff i.e. Suit No. 31/18/006 was not on a different and distinct cause of action. I am of the considered view that the second suit filed by the plaintiff was barred under Order 2 Rule 2 CPC as the plaintiff was entitled to claim more reliefs but he omitted to sue for the other reliefs.
82. Accordingly, these issues are decided in favour of the defendants and against the plaintiff.
83. ISSUE NO. 4 and ISSUE NO. 5:
84. I am taking issue no. 4 and 5 together as these issues can be conveniently decided together.
85. Section 38 and 39 of the Specific Relief Act 1963 deal with the cases in which perpetual and mandatory Page No. 48 / 64 injunction can be granted by the Court.
86. Section 38 of Specific Relief Act is reproduced here for ready reference: "38. Perpetual injunction when granted. (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings."
87. Section 39 of Specific Relief Act is also reproduced here for ready reference: "39. Mandatory injunction. When, to prevent the breach of an obligation, it is necessary to Page No. 49 / 64 compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."
88. In the present case, the plaintiff has deposed in his affidavit of evidence Ex.PW2/A that he is the owner of suit property as he purchased the same on 22.10.2001 from Smt. Parvati Devi for a valuable consideration of Rs. 90,000/ and she executed the Agreement to Sell Ex.PW2/1, Registered Power of Attorney Ex.PW1/1, Registered Will Ex.PW1/2, Affidavit Ex.PW2/2, Possession Letter Ex.PW2/3 Money receipt Ex.PW2/4 and Lal Dora Certificate Ex.PW2/6.
89. In his additional affidavit of evidence Ex.PW2/AB he has deposed that Smt. Parvati Devi was receiving family pension of her husband from Punjab National Bank, Nangloi Jat Branch by personally going to the Bank. The pass book of Smt. Parvati Devi is Ex.PW2/9.
90. The plaintiff has also examined Sh. B. P. Singh as PW3, who is Computer Operator, Punjab National Bank, Nangloi Jat to prove that Smt. Parvati Devi was fit and fine for the purpose of withdrawal and she used to visit the bank personally. The copies of withdrawal slips are Page No. 50 / 64 Ex.PW3/1 to Ex.PW3/7.
91. In crossexamination, he has denied that Sh. Narender Singh Yadav used to withdraw the amount from the account of Smt. Parvati Devi and Parvati Devi never personally collected the amount.
92. It is significant to note that the plaintiff (PW2) in his crossexamination has deposed that the Probate Petition bearing No. 150/2006 filed by him in respect of Will of Parvati Devi has been dismissed by the Court of Sh. Ravinder Dudeja, Ld. ADJ vide order dated 16.05.2007. The certified copy of the judgment is Ex.PW2/D1. It is worth noting that till date, the said judgment has not been set aside by any Court.
93. Further, PW2 in his crossexamination has admitted that no sale deed in respect of the suit property was executed in his favour. It is note worthy that the General Power of Attorney, Agreement to Sell relied upon by the plaintiff cannot be taken into consideration as the same do not confer any title or interest in favour of the plaintiff in view of the judgment of Hon'ble Supreme Court in Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr. VII (2011) SLT 494.
Page No. 51 / 6494. Since, the documents relied upon by the plaintiff are not sufficient to prove that he was the owner of the suit property and there is no evidence on record that there was an obligation existing in favour of plaintiff, I am of the considered view that plaintiff is not entitled to the reliefs of permanent as well as mandatory injunctions.
95. Accordingly, Issues No. 4 and 5 are also decided in favour of the defendants and against the plaintiff.
96. RELIEF:.
97. In view of my findings on the issues, I am of the considered view that plaintiff Narinder Singh Yadav is not entitled to any relief in CS No. 32/18 (Old CS No. 185/2005) titled as "Narinder Singh Yadav Vs. Himmat Singh".
98. Accordingly, the suit filed by the plaintiff is hereby dismissed.
99. Parties shall bear their own costs.
100. Decree sheet be prepared accordingly.
101. Now, I am taking CS No. 31/18/2006 (New CS No. 613572/2016) titled as "Narinder Singh Yadav Vs. Page No. 52 / 64 Vishwas Yadav & Ors.".
102. My findings on the issues are as under:
103. ISSUE NO. 1:
104. Issue No. 1 has already been decided in favour of the defendants and against the plaintiff, along with Issue No. 3 of CS No. 32 / 18 (Old CS No. 185/05).
105. ISSUE NO. 2:
106. The onus to prove this issue was on the defendants. However, Ld. Counsel for the defendant during final argument did not press this issue.
107. Accordingly, this issue is disposed of as not pressed and is decided in favour of the plaintiff and against the defendants.
108. ISSUE NO. 3, 4, 5 & 6:
109. I am taking these issues together as they can be decided conveniently together.
110. In view of my findings, on Issue No. 1, that CS No. 31/18/2006 is barred under Order 2 Rule 2 CPC in view of the pendency of earlier suit of plaintiff No. 32/18 (Old CS No. 185/05), I am of the considered view that plaintiff is not Page No. 53 / 64 entitled to the relief of declaration, possession, mesne profits / damages and permanent injunction.
111. Accordingly, Issue Nos. 3, 4, 5 and 6 are decided in favour of defendants and against the plaintiff.
112. RELIEF:
113. In view of my findings on issues, I am of the considered view that plaintiff is not entitled to any relief.
114. Accordingly, the CS No. 31/18/2006 filed by the plaintiff is hereby also dismissed.
115. However, in the facts and circumstances of the case, parties shall bear their own costs.
116. Decree sheet be prepared accordingly.
117. Now, I am taking CS NO. 33/18 (New CS NO.
613311/16 & Old CS No. 24/06) titled as "Parmeshwari Devi vs. Kamla Devi & Ors".
118. My findings on the issues are as under:
119. ISSUE NO. 1:
120. In the present case, PW1 Sheotaj Singh, who is the husband and Attorney of plaintiff, Smt. Parmeshwari Page No. 54 / 64 Devi has deposed in his affidavit of evidence Ex.PW1/A that Sh. Rao Nihal Singh was the owner and in possession of House No. 258, situated in Old Abadi of Village Nangloi Jat, New Delhi. He has further deposed that Smt. Parvati Devi, Smt. Parmeshwari Devi (Plantiff) and Smt. Kamla Devi succeeded all rights, title and interest of Late Nihal Singh, as per provision of section 8 of Hindu Succession Act and in equal shares in the suit property i.e. House No. 258 devolved upon them.
121. He has further deposed that House No. 258 was consisting of 300 sq. yards and was divided among the LRs of deceased Nihal Singh, in three equal shares of 100 sq. yards each and actual physical possession of the same was assigned to Smt. Parvati Devi, Smt. Parmeshwari Devi (the Plaintiff) and Smt. Kamla Devi. Smt. Parvati Devi, in order to maintain peace and harmony, executed General Power of Attorney, which was duly registered in the office of Sub Registrar, in favour of Smt. Kamla Devi.
122. He has further deposed that after the demise of Smt. Parwati Devi, the plaintiff and defendant no. 1 got 1/2 share in 1/3rd share of Parvati Devi in House No. 258, which was 100 sq. yards. The suit property is joint property and is not partitioned, till date, by metes and bound and Page No. 55 / 64 parties are in the joint possession of the property and apportionment has not been made, according to their share, in the suit property to the extent of 1/2 each. In other words, the suit property was owned by Sh. Rao Nihal Singh and after his death, the property was devolved in three equal shares, upon the plaintiff, and defendant no. 1 Smt. Kamla Devi and Smt. Parvati Devi.
123. But in crossexamination by Ld. Counsel for the defendants, PW1 has deposed that he has no record regarding the ownership of Rao Nihal Singh, with respect to the property No. 258, Nangloi Jat. He was not brought any paper nor placed any document on record to show that the suit property of Nishal Singh was succeeded by Parvati Devi. The area of the property bearing No. 258 was about 300 sq. yards at the time of institution of the suit. He does not know the exact time of death of Rao Nihal Singh but it took place long before his marriage.
124. The plaintiff has also examined Ratan Singh as PW2, who is the nephew of Smt. Parvati Devi. He has deposed in his affidavit of evidence Ex.PW2/1 that Smt. Parvati Devi along with her two daughters, namely Smt. Kamla Devi and Smt. Parmeshwari Devi succeeded the residential house, measuring about 300 sq. yards, in equal Page No. 56 / 64 shares, after the death of her paternal uncle, late Sh. Rao Nihal Singh. He stayed with Smt. Parmeshwari Devi up to 1965 and later on, on the request and pursuasion of Smt. Parvati Devi, Sh. Sheotaj Singh started living in House No.
258.
125. He (PW2) has further deposed that in the year 1966, Smt. Parvati Devi, in his presence, divided House No. 258 in three equal shares of 100 sq. yards, approximately and Smt. Kamla Devi opted the portion of her choice. He has further deposed that after the death of Smt. Parvati Devi, her portion of 100 sq. yards was succeeded by Smt. Kamla Devi and Smt. Parmeshwari Devi and both are entitled to succeed 50 sq. yards each.
126. However, in crossexamination by Ld. Counsel for the plaintiff, PW2 has deposed that area of Property No. 258 is about 200 sq. yards. He has no proof to show that he stayed with Smt. Parvati Devi. He cannot produce any proof with respect to his stayng with Smt. Parvati Devi in Property No. 258. He has admitted that he did not get prepared any ration card or other documents to show his proof of residence, during that period, with Smt. Parvati Devi, in Property No. 258. He has not stated that after the death of Sh. Rao Nihal Singh, the Property Page No. 57 / 64 No. 258 was divided into three parts. He has volunteered that death of Sh. Rao Nihal Singh took place in the year 1946 and Property No. 258 was partitioned in the year 1980. He has further deposed that he has no proof that Property No. 258 was pertaining to Rao Nihal Singh. He has further admitted that Property No. 258 was pertaining to Smt. Parvati Devi. He cannot produce the title documents of Property No. 258 in favour of Sh. Rao Nihal Singh.
127. Since, the plaintiff could not place on record any document to show that Sh. Rao Nihal Singh was the owner of the suit property and it is the case of the plaintiff that the suit property belonged to Rao Nihal Singh, in these circumstances, I am of the considered view that plaintiff has no locus standi to file suit.
128. Accordingly, Issue no. 1 is decided in favour of the defendants and against the plaintiff.
129. ISSUE NO. 2:
130. Since, the plaintiff has already dropped the relief, in respect of the declaration of Will, on 05.10.2016 vide a separate statement. Hence, no finding is given on this issue and this issue is decided in favour of defendants Page No. 58 / 64 and against the plaintiff.
131. ISSUE NO. 3:
132. In the present case, PW1 has deposed in his affidavit of evidence Ex.PW1/A that at the time of death of Smt. Parvati Devi, defendant no. 1 and 2 were in the house and they misappropriated the gold and silver ornaments and other valuable items belonging to Smt. Parvati Devi, in which the plaintiff is having 1/2 share. The plaintiff time and again asked the defendants to furnish the details, to give her share, in the movable property, left behind by Smt. Parvati Devi, as per her share.
133. He (PW1) has further deposed that defendant no. 1 and 2 with malafide intention and oblique motive let out the first floor of the share of Smt. Parvati Devi in Property No. 258, Nangloi Jat, Delhi at the montly rate of Rs. 10,000/ per month and did not give any share to the plaintiff, despite her entitlement.
134. In crossexamination, by Ld. Counsel for the defendants PW1 has deposed that beside the immovable properties, plaintiff has also claimed certain ornaments and cash amount of Smt. Parvati Devi alongwith important documents, regarding pension and passport. He has further Page No. 59 / 64 deposed that plaintiff is claiming onehalf share of cash of Rs. 4,90,000/, 110 grams gold ornaments and 5 kg of silver ornaments. However, the plaintiff has not stated as to how much amount of gold and silver ornaments were. He (PW
1) has further deposed that the papers regarding the above said articles were in treasury box and key of the same was lying with defendants. The said treasury box was owned by deceased Smt. Parvati Devi and the treasury box was being operated by Smt. Kamla Devi. However, he has no record regarding the ownership of treasury box.
135. Similarly, PW2 Ratan Singh has also deposed in his crossexamination that he does not have any proof to the effect that jewellery and other valuables were kept by Smt. Parvati Devi in a treasury box and after her death Smt. Kamla Devi has possessed the same.
136. It is further worth noting that plaintiff has valued the suit for the purpose of jurisdiction for the relief of partition at Rs. 4,50,000/ and for the purpose of court fees the suit was valued at fixed value. He has also valued the suit for the purpose of rendition of account of movable properties left by Smt. Parvati Devi and for the rental income of the suit property only at Rs. 200/.
Page No. 60 / 64137. Since, the plaintiff is also claiming her share in the cash amount of Rs. 4,90,000/ and gold and silver ornaments and rental income of the suit property, in these circumstances, I am of the considered view that plaintiff has not properly valued the suit for the purpose of court fees and jurisdiction.
138. Accordingly, Issue no. 3 is also decided in favour of the defendants and against the plaintiff.
139. ISSUE NO. 4:
140. PW1 has deposed in his affidavit of evidence Ex.PW1/A that House No. 258 was consisting of 300 sq. yards and the same was divided among the LRs of deceased Rao Nihal Singh, in three equal shares of 100 sq. yards each.
141. In crossexamination, PW1 has deposed that area of the Property bearing No. 258 was about 300 sq. yards at the time of institution of the suit. The Site Plan Ex.PW1/1A, relating to property No. 258, was got prepared at the instance of plaintiff. However, at the same time, he has also admitted that area, which has been mentioned in the Site Plan Ex.PW1/A, is 88 sq. yards only, which pertains to the share of Smt. Parvati Devi.
Page No. 61 / 64142. He has further deposed that measurement of the suit land is 25x30 fts. in area, on which double storied house has been raised. He has further deposed that his statement regarding the measurement of suit land is correct one. But, at the same time he has admitted that area of the suit property No. 258 is about 166 sq. yards approximately. He has also deposed that he had seen the Site Plan Ex.PW1/1A, filed by the plaintiff and according to him plaintiff is in the joint possession of the plot alongwith defendant. But also admitted that in the Site Plan Ex.PW1/1A, it has been written that it pertains to Smt. Parvati Devi only. He has denied that the land as shown in Site Plan Ex.PW1/1A is with defendants exclusively. He has further admitted that in the Site Plan Ex.PW1/1A, no separate possession of the parties to the suit, of their respective portions in the property, has been shown. He has denied that Ex.PW1/A is not the correct Site Plan of Suit Property. Since, PW1 has not been consistent in his testimony with regard to the area of the suit property, I am of the considered view that Site Plan Ex.PW1/1A relied upon by the plaintiff is not proper one.
143. Accordingly, Issue no. 4 is decided in favour of the defendants and against the plaintiff.
Page No. 62 / 64144. ISSUE NO. 5:
145. Since, the plaintiff has not been able to prove on record that the suit property was owned by Sh. Rao Nihal Singh and in view of my findings on issue No. 1, 3 and 4, I am of the considered view that plaintiff is not entitled to a decree of partition.
146. Accordingly, Issue no. 5 is also decided in favour of the defendants and against the plaintiff.
147. ISSUE NO. 6:
148. Since, the plaintiff has already dropped the relief of declaration in respect of Will vide her separate statement through her attorney on 05.10.2016, no findings are given on this issue and this issue is also decided in favour of the defendants and against plaintiff.
149. ISSUE NO. 7:
150. In view of my findings on Issue no. 1, 3, 4 and 5, I am of the considered view that plaintiff is not entitled to the relief of injunction and rendition of account.
151. Accordingly, Issue no. 7 is also decided in favour of the defendants and against the plaintiff.
152. RELIEF: Page No. 63 / 64
153. In view of my findings on the issues, as discussed above, I am of the considered view that plaintiff is not entitled to any relief.
154. Accordingly, the suit filed by the plaintiff is hereby dismissed.
155. However, in the facts and circumstances of the case, the parties shall bear their own costs.
156. Decree sheet be prepared accordingly.
157. Files of all the suits be consigned to record room, after due compliance.
ANNOUNCED IN THE OPEN COURT ON 04.06.2019 (BIMLA KUMARI) ADJ03 (CENTRAL) TIS HAZARI COURTS DELHI Page No. 64 / 64