Delhi District Court
Smt. Om Wati Sharma vs . Sh. Sanjay Sharma ... 1 on 17 December, 2013
Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 1
IN THE COURT OF MS. BARKHA GUPTA
ADDL. DISTRICT JUDGE03 (WEST), DELHI
Suit No.160/12/04
Unique ID No.02401C5664882004
Smt. Om Wati Sharma
W/o Sh.Durga Prasad Sharma
R/o WZ283, Nangal Raya
Delhi .........Plaintiff
Versus
Sh. Sanjay Sharma
S/o Sh. Durga Prasad Sharma
R/o WZ283, IInd Floor, Nangal Raya
Delhi ...... Defendant
Other Details:
a) Date of filing the Suit : 09.08.2004
b) Date of reserving the Order : 11.12.2013
c) Date of Order : 17.12.2013
d) Final Order : The Suit is Decreed.
Suit No.160/12/04 ...1/50
Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 2
J U D G M E N T
1. The plaintiff Smt.Om Wati Sharma has filed a suit against the defendant Sh.Sanjay Sharma, (her son) for Mandatory and Permanent Injunction and also for Recovery and Mesne Profits.
The case of the plaintiff in brief is that she had purchased the property bearing No.WZ283, Nangal Raya, Delhi on 06.05.1987 and she is the absolute owner and in possession of the said property. She further submits that the defendant is her elder son, who got married in the year 19921993, but since the defendant and his wife could not adjust with the plaintiff and the other family members, hence, she and her husband asked the defendant and his wife to leave their said house on which, the defendant along with his wife shifted to another premises on rent. She further submits that after about ten years, the defendant requested her to allow him and his family to Suit No.160/12/04 ...2/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 3 reside temporarily in the said house till he would get an alternative accommodation whereupon, the plaintiff allowed them to reside on the second floor of the said house bearing No.WZ283, Nangal Raya, Delhi (hereinafter referred to as "Suit Property") w.e.f. 15.08.2002 and at that time, the defendant also assured her that he would vacate the suit property within six months or till he would get an alternative accommodation, which ever is earlier and he further stated that he would pay a sum of Rs.2,000/ per month for the use of the suit property and he would also pay the electricity charges to the plaintiff separately on which, the plaintiff allowed the defendant to reside in the suit property ( i.e. the second floor of property bearing No.WZ283, Nangal Raya, Delhi) but thereafter, the defendant and his wife started misbehaving with the plaintiff and her husband. The plaintiff has further submitted that the defendant also used the electricity for commercial purposes to carry on his business of Suit No.160/12/04 ...3/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 4 manufacturing/soldering the scooter parts due to which, the electricity bill was exorbitant but the defendant did not pay anything and whenever, the plaintiff asked him to give her the money as promised by him, the defendant and his wife used to quarrel with her and also threatened her of dire consequences. She has also stated that they even dragged her, her husband and their younger son into a frivolous prosecution before the Executive Magistrate under Sections 107/151 Cr.P.C. with respect to DD No.27A dated 13.03.2003 P.S. Mayapuri due to which the plaintiff suffered great mental agony. Thereafter, the plaintiff also lodged a complaint dated 11.09.2003 against the defendant with SHO, P.S. Mayapuri but the police officials did not take any action against the defendant and hence, the plaintiff gave a public notice in the "Rashtriya Sahara"
newspaper on 04.07.2003 mentioning therein that she had severed all her relations with the defendant and his other family members and the plaintiff had also debarred the Suit No.160/12/04 ...4/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 5 defendant from all the movable or immovable property belonging to her and her husband.
The plaintiff further submits that she and her husband did not want that the defendant and his family should continue residing in the suit property and hence, the plaintiff had terminated the license of the defendant to reside in the suit property. Thereafter, the plaintiff and her husband made requests to the defendant to vacate the suit property but he did not pay any heed and the defendant threatened them to grab the suit property and the defendant and his wife also pressurized the plaintiff to transfer the suit property in their names else, they would deliver the possession of the suit property to some anti social elements. The plaintiff has also submitted that she also served legal notices dated 21.01.2004 and dated 06.07.2004 on the defendant whereby she asked the defendant to vacate the suit premises but the defendant neither vacated the suit property nor responded to the said Suit No.160/12/04 ...5/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 6 legal notices.
The plaintiff has further submitted that even on 02.03.2004, the defendant had tried to kill her husband and he raised hand upon him whereupon, they called the police but the police officials did not register any FIR against the defendant and they rather registered a case under Section 107/151 Cr.P.C against the husband of plaintiff. The plaintiff submits that thereafter, her husband had also made a written complaint to the DCP, South West District, New Delhi on 03.03.2004 but the police officials did not take any action against the defendant.
The plaintiff has also submitted that on 29.07.2004, the defendant along with two policeman came to her house and threatened her and her husband not to initiate any legal proceedings against him and also asked them to do as per his wishes. Further, on 30.07.2004 the defendant broke the lock of the stairs of the suit property and threatened the husband of the plaintiff not to make any complaint to Suit No.160/12/04 ...6/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 7 anybody, however, husband of the plaintiff made a call to police officials but they did not take any action against the defendant and thereafter, they also made a complaint to the Commissioner of Police on the same day but in vain.
The plaintiff has submitted that the defendant is under a legal obligation to pay her a sum of Rs.48,000/ and he has no legal right to stay or reside in the suit property. The plaintiff has prayed that a decree of Mandatory and Permanent Injunction may be passed in her favour and against the defendant whereby the defendant may be directed to vacate the suit property and he may also be directed to remove the goods lying in the room and kitchen in the suit property and she has also prayed that a decree in sum of Rs.48,000/ along with interest @ 18% per annum along with mesne profits /damages along with costs may be passed in her favour and against the defendant.
2. The defendant has filed the Written Statement Suit No.160/12/04 ...7/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 8 wherein he has taken preliminary objections that the suit filed by the plaintiff is bad for non joinder of necessary parties and has further stated that the suit is not properly valued for the purpose of court fees and jurisdiction and took another preliminary objection that the plaintiff has not come to the court with clean hands and she has concealed various material facts from the court.
On merits, the defendant has stated that the plaintiff is not the sole owner of the suit property and she is not entitled to any of the reliefs as claimed by her. He has submitted that Smt.Soni Devi (MotherInLaw of the plaintiff and grand mother of the defendant) had purchased a plot measuring 83' X 12 ½' (i.e. about 123 sq. yds) and thereafter, Smt.Soni Devi and her husband had constructed a house bearing No.WZ257A on the said plot. Further, after the death of Smt.Soni Devi, the said property devolved upon her two sons including Sh.Durga Prasad (husband of plaintiff) and thereafter, Sh.Durga Prasad sold Suit No.160/12/04 ...8/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 9 his share of 63 sq.yds from the said house to Sh.Rajender Gupta for a sum of Rs.48,000/. He has further stated that from the said amount, Sh.Durga Prasad had purchased the property bearing No.WZ283, Nangal Raya, Delhi for a sum of Rs.30,000/ and accordingly, the said property including its second floor, which is the suit property, was purchased by Sh.Durga Prasad by selling his portion of the ancestral house and hence, apart from Sh.Durga Prasad, since all his three sons (including the present defendant) had a share in said ancestral property and since the present property was purchased by his father in the name of his mother i.e. the plaintiff from the funds realized by selling the ancestral property by Sh.Durga Prasad, hence, the defendant also has 1/4th share in the present property and he is accordingly residing in suit property in his own right.
The defendant has also submitted that the plaintiff is not the owner of the said property bearing No.WZ283, Suit No.160/12/04 ...9/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 10 Nangal Raya, Delhi (including suit property) and so, she cannot ask for any mesne profits or any other amount from the defendant as the defendant is a cosharer and coowner of 1/4th of portion in the said property and as per their 'Oral Partition Agreement', the defendant has got one room set on the second floor of the said property, which is the suit property as his share, where he is residing in his own rights and hence, the plaintiff has no right to ask him to vacate it or to claim any mesne profits from him.
The defendant has claimed that after five years of his marriage, he and his wife had shifted to a rented accommodation due to shortage of accommodation, but when his other brother namely Sh.Vikram Sharma shifted to govt accommodation, then, the defendant came back and started residing in the suit property again. The defendant has also submitted that in fact, he was a tenant in one shop of Sanatan Dharam Mandir, however, his father Sh.Durga Prasad wanted to open the shop of his other son in the said Suit No.160/12/04 ...10/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 11 shop of the defendant and so, it was settled between them in the month of August 2001, that the other son i.e. the other brother of defendant would start his business in the said tenanted shop of the defendant and in lieu thereof, the defendant was given vacant possession of one room at second floor of said property i.e. suit property in the month of August 2001.
The defendant has denied that he had left the said house when the plaintiff asked him to do so or that he had requested the plaintiff to allow him to reside in the suit property again or that he had assured the plaintiff that he would pay an amount of Rs.2,000/ to the plaintiff or that he would bear the electricity charges.
The defendant has also denied that he had threatened the plaintiff or her husband or any of their sons in any manner or threatened them to falsely implicate them in any case or he, in connivance with the police officials got them falsely implicated in the case under Section 107/151 Cr.P.C. Suit No.160/12/04 ...11/50
Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 12 The defendant has emphasized that he is the cosharer in said property to the extent of 1/4th share and hence, he is the owner of the suit property and also submits that though plaintiff got a public notice issued in the newspaper "Rashtriya Sahara" dated 04.09.2003 whereby she has debarred him from all her property, yet it has no impact on his rights in the said property and in the suit property.
He has submitted that when he received the notice dated 21.01.2004 as sent by the plaintiff, he consulted his father Sh.Durga Prasad (husband of plaintiff), who told him that the plaintiff might have issued the said notice at the instance of her other son Sh.Rajesh Sharma and he also told him not bother about it and hence, the defendant did not give any reply of the said notice. The defendant has denied that on 02.03.2004, he made any attempt to strangulate Sh.Durga Prasad and has stated that the plaintiff herself had made false and frivolous calls to the police officials. He has denied that on 29.07.2004, he along Suit No.160/12/04 ...12/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 13 with two policeman came to the plaintiff and threatened the plaintiff and Sh.Durga Prasad not to initiate any legal proceedings against him. He has stated that he never broke the doors of the stairs of the suit property and has prayed that suit of the plaintiff may be dismissed being devoid of merits.
3. The plaintiff has filed the rejoinder/replication to the Written Statement filed by the defendant wherein she has rebutted the various averments of defendant and has re asserted whatever she has already stated and mentioned in her plaint. In the present case, as per record, vide order dated 08.02.2005, following issues were framed : (1) Whether the suit is bad for non joinder of necessary parties? OPD (2) Whether the suit has not been valued properly for the purpose of court fee and jurisdiction ? OPD (3) Whether the plaintiff has not come before the court with clean hands and concealed the material facts, Suit No.160/12/04 ...13/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 14 and if so, its effect ? OPD (4) Whether the plaintiff is not the sole owner of the suit property ? OPD (5) Whether the plaintiff is entitled to decree of Mandatory Injunction ? OPP (6) Whether the plaintiff is entitled for recovery of sum claimed ? OPP (7) Whether the plaintiff is entitled to relief of Permanent Injunction ? OPP (8) Relief.
4. The plaintiff, in support of her case has examined herself as PW1 and her husband Sh Durga Prasad Sharma as PW2. The plaintiff has tendered her evidence by way of affidavit Ex.PW1/X and has relied upon certain documents Ex.PW1/A to Ex.PW1/K. Sh.Durga Prasad has also led his evidence by way of affidavit Ex.PW2/Y and has relied upon documents Ex.PW2/A to Ex.PW2/E. The defendant Sh.Sanjay Sharma has examined Suit No.160/12/04 ...14/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 15 himself as DW1 and has relied upon the photocopy of Sale Deed dated 16.03.1970 as 'Mark A' and the copy of electricity bill in the name of Soni Devi as 'Mark Y'. The defendant has also examined his cousin sister namely Smt.Munni Devi as DW2 who has lead her evidence by way of affidavit Ex.DW2/A.
5. I have heard the final arguments as advanced by Advocate Sh. Ashok Kumar Sharma, ld. counsel for the plaintiff and Advocate Sh. S.K.Gupta, ld. counsel for the defendant and have given my thoughtful consideration to the rival submissions made by them and I have also gone through the material as placed on record. Now, I proceed to discuss and give the findings on the aforesaid issues and firstly, the Issue No.4 is discussed in the paras underneath.
6. ISSUE NO.4 : Whether the plaintiff is not the sole owner of the suit property ? OPD The onus to prove the said Issue is on the defendant Suit No.160/12/04 ...15/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 16 Sh.Sanjay Sharma.
7. Ld. counsel for the defendant has submitted that Smt.Soni Devi, who is the grand mother of the defendant had purchased a property and built a house on it and after her death, the said property devolved upon Sh.Durga Prasad Shrama (husband of plaintiff and father of defendant) and his brother in equal shares as their sister did not take her share and thereafter, Sh.Durga Prasad Sharma sold his said share of ancestral property for Rs.48,000/ and out of the said money, he purchased the present property in the name of his wife i.e. plaintiff (mother of defendant). He has further submitted that since the said property bearing No.WZ283, Nangal Raya, Delhi including the suit property which is the second floor of said property was purchased by Sh.Durga Prasad in the name of plaintiff from the money realized by him by selling his share in the ancestral property, hence the defendant has got 1/4th share in the said property and Suit No.160/12/04 ...16/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 17 accordingly, he is the owner of the suit property. He further submits that the defendant is residing on the second floor of the said property i.e. suit property in his own rights. He has further submitted that simply because, the plaintiff had issued a notice in the newspaper for debarring him from all her property, however, it has no effect on his legal rights in the suit property and has also stated that though the defendant has received the legal notices sent by plaintiff, however, he did not reply as his father i.e. the husband of plaintiff had assured him not to do so and also told that the plaintiff might have issued them at the instigation of her other son. Ld. counsel for the defendant has also submitted that since the defendant had a share in the property of her grand mother and his father sold his share of ancestral property and bought the said property including suit property in the name of mother of defendant, hence, the defendant has a right in it and he is residing in the suit property in his own right and prays that the suit Suit No.160/12/04 ...17/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 18 may be dismissed.
8. Ld. counsel for the plaintiff has submitted that although the husband of plaintiff had sold his share of the ancestral property, however, the plaintiff herself had purchased the property bearing No.WZ283, Nangal Raya, Delhi in her name (including the suit property) from the money which she had earned on her own and she also took necessary financial help from her father and hence, the amount which the husband of plaintiff got by selling his share of ancestral property was never utilized by him or by the plaintiff for the purpose of buying the said property bearing No.WZ283, Nangal Raya, Delhi in the name of plaintiff and since it was bought by the plaintiff herself in her own name from her own earnings and she has also debarred the defendant by issuing a public notice in the newspaper 'Rashtriaya Sahara', hence, the defendant has no right, title or interest in the suit property. He has also submitted that in fact, the defendant himself had requested Suit No.160/12/04 ...18/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 19 the plaintiff to allow him to reside in the suit property for some time till he would get an alternate accommodation and he also agreed to pay Rs.2,000/ p.m. to the plaintiff apart from paying the electricity bill but he never paid any amount to the plaintiff and had even used the electricity for commercial purposes due to which the electricity bills were exorbitant and whenever, the plaintiff asked the defendant to do the needful, he would not only misbehave with her but also threatened and harassed her and her husband. He has prayed that since the plaintiff is the sole owner of the suit property and the defendant has no right, title or interest in it, hence the suit may be decreed.
9. The plaintiff Smt.Om Wati Sharma (PW1) has led her evidence by way of affidavit Ex.PW1/X wherein she has reiterated and reaffirmed whatever she has already stated in the plaint.
During her cross examination, she has inter alia stated that after the death of her MotherInLaw Smt.Soni Suit No.160/12/04 ...19/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 20 Devi, her property devolved upon her two sons including her husband Sh.Durga Prasad Sharma and he sold his respective share. She has clearly denied if her husband had purchased the said property i.e. house No.WZ283, Nangal Raya, Delhi out of the earnest money which her husband had got by selling his share in the ancestral property. She has clearly stated that " ... It is wrong to suggest that my husband purchased H.No.WZ283 out of earnest money of WZ257 in my name. It is wrong to suggest that WZ283 was purchased out of sale proceeds of ancestral property WZ257..." Further, PW1 has also very clearly stated that she had purchased the suit property from her own earnings by working at her house (which was of fabrication of cloth) which contention of plaintiff is nowhere shown to be false. She has also stated that her father had also helped her financially in purchasing the said property which also is not shown to be false or fabricated. Further, during suggestion put by defendant, she has also stated that " ... It Suit No.160/12/04 ...20/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 21 is wrong to suggest that deft is residing in portion in suit premises in capacity of owner or that there was no agreement of giving Rs.2,000/ p.m. as maintenance. Vol. It was agreed to pay Rs.2,000/ p.m. It is correct that the deft paid the water and electricity charges once and thereafter did not pay amount towards the same nor prior to that. No writing to the effect of paying Rs.2,000/ pm was done. ..." She has also denied that the defendant is not doing any commercial activity in the suit property or that he is using it only for residential purpose. She has admitted the suggestion given by the defendant that "... It is correct that defendant is not doing scooter repair work. Vol. He makes spare parts of scooter. ..." Though PW1 was cross examined at length, yet nothing is shown on record if she is deposing falsely or that she did not purchase the property bearing No.WZ283, Nangal Raya, Delhi from her own earnings or assisted by her father or if her husband lend financial assistance to her in purchasing the said property. Suit No.160/12/04 ...21/50
Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 22
10. Sh.Durga Prasad Sharma (PW2) has tendered his affidavit Ex.PW2/Y in his evidence. During cross examination, he has inter alia stated that the plaintiff (his wife) is a house wife who used to earn about Rs.1,000/ to Rs.4,000/ per month on her own. Though, he has stated that he has no document to show that his FatherInLaw had financially helped his wife, however, he has volunteered that it was a matter between his wife i.e. plaintiff and her father. Accordingly, in the given facts and circumstances, no inference as such can be drawn that the father of plaintiff did not help her or if PW2 had financially helped her in purchasing the property bearing No.WZ283, Nangal Raya, Delhi.
PW2 has also stated that though one house was in the name of his mother and after death of his mother, he and his brother inherited it and thereafter, he sold his portion of the said house and has denied if from the said money which he realised by selling his share in the Suit No.160/12/04 ...22/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 23 ancestral property, he had purchased the property bearing No.WZ283, Nangal Raya, Delhi including the suit property in the name of his wife i.e. plaintiff. He has rather asserted and emphasized that his wife i.e. the plaintiff had purchased the said property bearing No.WZ283, Nangal Raya, Delhi in her name from her own earnings.
11. The defendant Sh.Sanjay Sharma (DW1) has lead his evidence by way of affidavit Ex.D1. He has also stated during his cross examination that he got married in the year 1992 and from the year 1997, he along with his wife resided in rented accommodation and then again, he alongwith his wife started residing in the suit property since the year 2000. He has also stated that his father (i.e the husband of plaintiff) had sold his share in the ancestral property and he took Rs.30,000/ as advance as earnest money in cash in the month of April 1987 and he took rest of the amount at the time of execution of final documents Suit No.160/12/04 ...23/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 24 of sale and purchase. He has also stated that at the time of execution of Agreement to Sell by his father in favour of Somwati Devi (to whom his father had sold his share in the ancestral property) apart from him, his cousin sister Ms.Munni Devi (DW2) and Sh.Babu Lal were also present and the said Agreement was executed in the month of April 1987. He has denied that he and Munni Devi were not present in the office of Sub Registrar at the time of execution of the said documents.
It is quite surprising to note here that in the next breath itself, he has stated that in April, 1987, his father Sh.Durga Prasad had not executed any document in favour of the buyer Smt.Somwati Devi and has rather again stated that in the month of April, 1987, the Bayana/receipt of the earnest money was received by his father and only later on, the Agreement to Sell was executed by his father regarding selling his portion of ancestral property.
During his further cross examination, he has also Suit No.160/12/04 ...24/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 25 stated that he has no knowledge as to how many persons were present at the office of Sub Registrar, Ghaziabad when the said documents were executed by his father (pertaining to selling of share in ancestral property). He has also stated that " It is correct that I was not present in the office of Sub Registrar, Ghaziabad when the registered Sale Deed has been executed in favour of Smt.Somwati and Sh.Rajender Gupta by my father Sh.Durga Prasad and uncle Sh.Sita Ram" and he has also volunteered that he had not gone there. Accordingly, it is shown that DW1 is saying at one point of time that he was also present in the office of Sub Registrar when his father had sold his share in ancestral property whereas at other place, he is clearly denying it and is creating doubt even regarding presence of Ms.Munni Devi (DW2) at that time.
After going through the entire deposition of DW1, he has nowhere been able to show that the plaintiff did not purchase the property bearing No.WZ283, Nangal Raya, Suit No.160/12/04 ...25/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 26 Delhi (including the suit property), from her own earnings and with help of her father and the defendant could not show that the husband of plaintiff had purchased the said property (including suit property) in the name of plaintiff from the funds realized by him by selling his share in ancestral property.
12. Smt.Munni Devi (DW2) has tendered her affidavit in evidence and during her cross examination, she has stated that the ancestral property WZ257, Nangal Raya, Delhi, which was in the name of her grand mother was sold by her father and uncle (i.e. father of defendant) and at that time, she was about 17/18 years old. She has also stated that when the said property was sold, she was present but at the time of execution of documents regarding selling the ancestral property, she was not present. She has also stated that she never visited the office of Sub Registrar when the ancestral property was sold by her father and uncle. She has also stated that no sale consideration was given or Suit No.160/12/04 ...26/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 27 taken in her presence in this regard. She has also stated that the property bearing No.WZ283, Nangal Raya, Delhi including the suit property was purchased in the name of plaintiff in the month of April 1987, however, when the documents of said property were registered, she was not present at the office of Registrar.
As per record, DW2 is nowhere able to state or show anything before the court if the husband of plaintiff had purchased the property bearing No. WZ283, Nangal Raya, Delhi (including the suit property) in the name of the plaintiff or if he had purchased it in the name of the plaintiff from the funds which he realized by selling his share of ancestral property. Further, as per record, DW2 has also contradicted the version of DW1 regarding presence in the office of SubRegistrar at the time of execution of documents. She has stated that " It is correct that I was told by my uncle that the suit property was purchased by my aunty. Again said, it was told to me that Suit No.160/12/04 ...27/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 28 the property had been purchased in the name of my aunty." She has further stated that " I have no knowledge if defendant was disowned by my uncle or the defendant was residing as a tenant on a monthly rent of Rs.2,000/ in the suit property.". The same goes to show that she herself is not clear about details of property, however, she has clearly stated that the property was purchased in the name of plaintiff and has also admitted that it was purchased by the plaintiff.
13. Even at the cost of repetition, it is stated that in the present case, the plaintiff has filed the suit for mandatory and permanent injunction and also for recovery of mesne profits against the defendant Sh.Sanjay Sharma (her son) on the ground that he is residing in the suit property which is the second floor of property bearing No.WZ283, Nangal Raya, Delhi. The plaintiff has claimed herself to be the owner of entire said property. It is pertinent to discuss here that the defendant has nowhere disputed either the Suit No.160/12/04 ...28/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 29 ownership status of plaintiff, however, he has only claimed that he is residing in the suit property in his own rights by stating that the aforesaid property bearing No.WZ283, Nangal Raya, Delhi (including the suit property) was purchased by his father from the funds which his father had realized by selling his share of the ancestral property and his father had purchased the said property bearing No.WZ283, Nangal Raya, Delhi in the name of his mother from the funds so realized and hence, he too has got a share in the said property bearing No.WZ283, Nangal Raya, Delhi and accordingly, he is residing in the suit property i.e. on the second floor of house bearing No.WZ283, Nangal Raya, Delhi as cosharer/coowner.
The plaintiff has claimed that she had purchased the property bearing No.WZ283, Nangal Raya, Delhi including suit property from her own earnings and she was also financially helped by her father and hence property bearing No.WZ283, Nangal Raya, Delhi (including the Suit No.160/12/04 ...29/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 30 suit property) is her self acquired property. Though the defendant has cross examined the plaintiff (PW1) & her husband Sh.Durga Prasad (PW2) at length yet nothing is shown on record if PWs 1 & 2 are telling lies or if the property bearing No.WZ283, Nangal Raya, Delhi (including the suit property) is not the self acquired property of plaintiff. Further, though the defendant has examined himself and his cousin sister as DW1 & DW2 respectively yet nothing has come on record if at all, the plaintiff or her husband are telling a lie or if the plaintiff did not purchase the said property bearing No.WZ283, Nangal Raya, Delhi from her own earnings/financial assistance of her father or if her husband purchased it from the money which he got by selling his share in the ancestral property.
Further, the defendant has also failed to establish if Sh.Durga Prasad (PW2), his father i.e. husband of plaintiff had ever lend any financial assistance to the Suit No.160/12/04 ...30/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 31 plaintiff in purchasing the said property bearing No.WZ283, Nangal Raya, Delhi. However, even if it is presumed that Sh.Durga Prasad had helped the plaintiff in purchasing the said property and gave money to her for the purpose, yet it in itself does not indicate that the husband of plaintiff gave the same money which he had obtained from selling his portion in the ancestral property and there is nothing on record that the defendant has a legal right to reside in the said property bearing No.WZ283, Nangal Raya, Delhi which was purchased by her mother on her own or if by virtue of above, he has become a cosharer or coowner in the property bearing No.WZ283, Nangal Raya, Delhi or in suit property.
14. It is also pertinent to discuss here that as per the defendant (DW1), his father Sh.Durga Prasad (PW2) had sold his share in the property of his mother and got Suit No.160/12/04 ...31/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 32 Rs.48,000/ through cheque and he had taken Rs.30,000/ as advance money in cash and the balance amount was taken by him at the time of execution of final documents. He has also stated that his father did not execute any documents in April 1987 but has again stated that in the month of April 1987, the bayana/receipt of earnest money was received by his father and later on, the Agreement of sale was executed. He has also stated that his Taya ji namely Sh.Sita Ram, who had also got equal share in the property of his mother had also sold his share of property for Rs.48,000/ and he had also executed a receipt in this regard for Rs.48,000/.
It is important to discuss that during his further cross examination, the defendant has stated that Ms.Somwati who is the wife of Sh.Rajender Gupta (to whom Sh.Durga Prasad who is father of defendant and Sh.Sita Ram who is Taya of defendant had sold their respective portions which they got in the property of their mother) had made payment Suit No.160/12/04 ...32/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 33 to his father and to Sh.Sita Ram vide cheque bearing No.484689 for a sum of Rs.48,000/ and cheque bearing No.0707045 for a sum of Rs.48,000/, both drawn on State bank of Bikaner and Jaipur before SubRegistrar office, Ghaziabad at the time of executing the registered sale deed of property bearing No.WZ257 A, Nangal Raya, Delhi i.e. the property of grand mother of defendant which was equally divided and partitioned between the father of plaintiff and his brother. However, Ms.Munni Devi (DW2) has stated during her cross examination that at the time of execution of documents of the said property which her father Sh.Sita Ram and Sh.Durga Prasad Sharma (father of defendant) got from their mother, an amount of Rs.30,000/ was initially received by her uncle i.e. Sh.Durga Prasad Sharma as earnest money and the said earnest money was of whole of the property. She has also stated that the total sale consideration of property was Rs.48,000/ for each of the sellers. She has also stated that at the time of execution Suit No.160/12/04 ...33/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 34 of sale documents of the said property by her father and uncle Sh.Durga Prasad, she did not visit the office of Registrar. She has also admitted that the sale consideration was not given or taken in her presence and rather her father and uncle had told her about the entire sale transaction. She has also stated that she does not know whether the payment was made in installment or not or if the entire some was paid at one time. She also did not know whether the payment was made through cheque or cash. During her further cross examination, she has stated that the suit property (i.e. second floor of property bearing No.WZ283, Nangal Raya, Delhi) was purchased in the month of April 1987 and has also stated that when the edifice of the suit property was laid down, she was called by her uncle Durga Prasad for the said ceremony. She has also stated that when the documents qua the suit property were executed in the office of Registrar, she was not present. She did not remember the consideration of the suit property or about Suit No.160/12/04 ...34/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 35 the seller of the suit property. She has denied if the suit property was purchased prior to sale of property which her father and Sh.Durga Prasad got from their mother.
As per plaintiff, she had purchased the suit property in the month of May, 1987 whereas it has come on record that the husband of plaintiff (father of defendant) had sold his share in the property of his mother in the month of July 1987. Though, Sh.Durga Prasad might have received an amount of Rs.30,000/ prior to execution of documents pertaining to selling his share of land in the property of his mother, however, it is nowhere shown if he had utilized the said amount in purchasing the suit property in the name of plaintiff. Further, glaring contradictions have crept on record regarding presence of DWs at the time when father of defendant received the earnest money and also regarding the time when he executed requisite documents in favour of buyer regarding selling his share in the property of his mother.
Suit No.160/12/04 ...35/50
Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 36 DW1 has also stated that his father had executed a receipt of Rs.48,000/ in favour of buyer at the time of selling of his share in house of his mother and has also stated that he was also present when the documents of sale were executed by his father in favour of buyer regarding the property in which his father had got share. It is surprising to note that in the next breath, he has stated that his father had received Rs.48,000/ through cheque. He has also stated that at the time of execution of agreement ( by his father in favour of buyer regarding selling his share in property of his mother), his cousin sister Ms.Munni Devi (DW2) was also present in the office of Sub Registrar. It is surprising that Smt.Munni Devi (DW2) states that only an amount of Rs.30,000/ was received as earnest money for entire property and at the time of execution of documents by father of defendant, she was not present in the office of SubRegistrar. The aforesaid contradictions are undoubtedly very material which go the root of the Suit No.160/12/04 ...36/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 37 matter and shake the basic versions of DWs 1 & 2 and their testimonies are doubtful.
Accordingly, the version of defendant is contradicted by his own witness i.e. DW2 on material aspects as already discussed above.
15. It is important to discuss that the Hon'ble Apex Court in catena of cases has laid down that where the ancestral property is partitioned, then it loses the character of joint family property and each of the such person who has got a share in the said joint property, has a right to transfer/sell his share of land i.e. in said property in the manner he deems fit. Further, such property loses the character of ancestral property in terms of Section 8 of Hindu Succession Act. In this view, I take support from the observation made by the Hon'ble Apex Court in the cases of Bhanwar Singh Vs. Puran & others, AIR 2008 SC 1490 and in the case of Hardeo Rai Vs. Shakuntala Devi, AIR 2008 SC 2489.
Suit No.160/12/04 ...37/50
Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 38
16. Brief facts in the case of Bhanwar Singh Vs. Puran & others are that a person namely Bhima was the owner of the property who died in the year 1972 and left behind his son Sant Ram and three daughters. Further, the property of Bhima Ram was partitioned between them and accordingly, Sant Ram got 1/4th share in the property of his father Bhima. Further, his son Puran was born in 1977 who attained majority in the year 1995 and Puran claimed that he too had a right/share in the said ancestral property of Bhima from which his father Sant Ram got his 1/4th share and Puran also asserted that the same being joint family property, hence he too has share in it i.e. in the property which his father Sant Ram got share on death of his father.
The Issue before the Hon'ble Apex Court in the case was to ascertain whether Puran (son of Sant Ram) had acquired any interest in the said property by his birth or not. The Hon'ble Apex Court has laid down that as per Section 8 of the Hindu Succession Act, the properties of Suit No.160/12/04 ...38/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 39 Bhima (since deceased) devolved upon his son Sant Ram and his three daughters and each had 1/4th share in the property and a partition had also taken place amongst the heirs of Bhima. The Hon'ble Court has also observed that in a case of this nature, the joint coparcenary did not continue and since Sant Ram and his sisters had partitioned their properties (which devolved on them after the death of their father Bhima Ram) and each of them had become owner to the extent of 1/4th share each, hence Sant Ram had requisite right to transfer the land falling within his share and he could alienate his share as well and Puran cannot claim any right in the said property.
17. Further, in the case of Hardeo Rai Vs. Shakuntala Devi, the Hon'ble Apex Court has also observed that when there is coparcenary property and when the intention is expressed to partition the property, then the share of each of coparceners become clear and once the share of a co parcener is determined, then it ceases to be coparcenary Suit No.160/12/04 ...39/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 40 property. Further, where a coparcener takes a definite share in the said property, he becomes the owner of that share and as such, he can alienate the said property by sale or mortgage in the same manner as he can dispose of his separate property.
18. Accordingly, in the case in hand, in the given facts and circumstances, even if the husband of plaintiff had sold his share in the property of his mother which was duly partitioned, yet it was his separate property and he had become its owner and even if husband of plaintiff helped her in purchasing the property bearing No.WZ283, Nangal Raya, Delhi (including the suit property), still it cannot be stated that the plaintiff has purchased the property bearing No.WZ283, Nangal Raya, Delhi from the money realized by her husband from selling his share in the property of his mother as the said property had become separate property of her husband and the proceeds cannot be stated to be proceeds from selling ancestral property. Suit No.160/12/04 ...40/50
Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 41 Further, even at the cost of repetition, it is discussed that it is nowhere shown that the suit property was purchased by the husband of plaintiff by investing any funds realized by him by selling his share in the property of his mother. Moreover, when the property of mother of Sh.Durga Prasad (i.e. husband of plaintiff and father of defendant) was duly partitioned between Sh.Durga Prasad and his brother Sh.Sita Ram, then as per settled law, it loses the character of ancestral property in which regard the judgments and observations of Hon'ble Apex Court have already been discussed at length. Accordingly, though not proved on record, however, even if husband of plaintiff had sold his share in property of his mother and realized certain funds, then his share in the said property was his own property and the funds realized are his own funds and they cannot be termed as part of ancestral property or part of ancestral funds and the same would not help defendant in any manner whatsoever.
Suit No.160/12/04 ...41/50
Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 42
19. Now, so far as case in hand is concerned, on the basis of material as placed on record and in view of totality of facts and circumstances, in considered opinion of the court, the defendant has miserably failed to show if plaintiff is not the sole owner of property bearing No.WZ283, Nangal Raya, Delhi including suit property or if she did not purchase the said property on her own or if the said property falls within the category of "joint property" or "ancestral property". Even if it is presumed that father of the defendant had lend financial assistance to plaintiff in purchasing the said property, yet it does not lead to the conclusion that it has acquired the character of ancestral property. Accordingly, in the given facts and circumstances of the cases, court is of the considered opinion that the property bearing No.WZ283, Nangal Raya, Delhi including suit property is the self acquired property of the plaintiff and she is its absolute owner. Accordingly, the Issue is decided in favour of the plaintiff and against the Suit No.160/12/04 ...42/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 43 defendant.
20. Now I proceed to give findings on the Issues Nos.5, 6 & 7 being corelated.
ISSUE No.5 : Whether the plaintiff is entitled to decree of Mandatory Injunction ? OPP ISSUE No.6 : Whether the plaintiff is entitled for recovery of sum claimed ? OPP ISSUE No.7 : Whether the plaintiff is entitled to relief of Permanent Injunction ? OPP
21. The onus to prove the aforesaid Issues are on the plaintiff Smt.Om Wati. The plaintiff, in support of her case has examined herself and her husband and has also relied upon various documents. She has also proved on record the copy of Agreement pertaining to property bearing No.WZ283, Nangal Raya, Delhi as Ex.PW1/A to show that she is the owner of property bearing No.WZ283, Nangal Raya, Delhi and has also proved the site plan as Suit No.160/12/04 ...43/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 44 Ex.PW1/B. Further, the plaintiff has also proved the legal notices dated 20.01.2004 and dt.06.07.2004 as sent by her to the defendant and also proved the registry receipts and AD cards as Ex.PW1/G and Ex.PW1/H respectively. Further, the plaintiff has also proved the copy of public notice which she got issued in the newspaper "Rashtriya Sahara" dated 04.07.2003 vide which she had debarred the defendant from her property i.e. suit property as Ex.PW1/D. On the other hand, the defendant could not show anything contrary to the record to show that the said documents are not genuine or that plaintiff is not the absolute owner of property bearing No.WZ283, Nangal Raya, Delhi (including the suit property). It would also be appropriate to discuss here that the defendant has not challenged either of the said documents and has not raised any iota of suspicion over them.
Since this court has already decided that the plaintiff Smt.Omwati is the owner of property bearing No.WZ283, Suit No.160/12/04 ...44/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 45 Nangal Raya, Delhi including suit property, now it needs to be discussed as to what kind of rights the defendant is having in the suit property as son of the plaintiff. The plaintiff has stated that the defendant resided in the suit property as licensee and as per record, nothing is shown to the contrary in given facts and circumstances. Now, what type of right a licensee would have qua the suit property ? Certainly, he does not have a right to permanently reside in the suit property and he can be removed from the suit property by terminating his license. Admittedly, in the present case, the plaintiff had already served a legal notice on the defendant vide which she has terminated his license which means that the plaintiff has revoked the license of the defendant to stay in the suit property and has filed the present case. Such suit can be titled as either mandatory injunction or possession and as such, the nomenclature of suit will not make any difference, however, the same has to be subject to payment of appropriate court fees. The Suit No.160/12/04 ...45/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 46 plaintiff has complied with all legal requirements, hence she is entitled for decree of mandatory injunction qua suit property subject to payment/deposition of deficit court fees within one month of this order and recovery of Rs.48,000/ and thereafter, decree sheet be prepared as per rules.
Accordingly, on the basis of material as placed on record and in view of totality of facts and circumstances and in view of aforesaid discussion, the Issues Nos.5, 6 & 7 are decided in favour of the plaintiff and against the defendant.
22. Now, Issue Nos.1 & 3 are discussed in the paras underneath.
ISSUE NO.1 : Whether the suit is bad for non joinder of necessary parties? OPD ISSUE No.3 : Whether the plaintiff has not come before the court with clean hands and concealed the material facts, and if so, its effect ? OPD Suit No.160/12/04 ...46/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 47 The onus to prove both the said issues is on the defendant, however, during course of final arguments ld.counsels for the defendant has submitted before the court that he does not want to say anything on the said Issues as they are not material and do not throw any light on merits of the case and has also stated that he does not press those issues. Further, as per record, the defendant has nowhere shown as to how the suit is bad for nonjoinder of necessary parties or which were the necessary parties or how the plaintiff has not come before this court with clean hands or in what manner, the plaintiff has concealed the material facts. Accordingly, in view of totality of facts and circumstances of the case, keeping in view the findings given by the court on the Issues No.4, 5, 6 & 7 and also in view of submission of ld. counsel for defendant, the said Issues are decided against the defendant and in favour of the plaintiff.
23. ISSUE No.2 : Whether the suit has not been valued Suit No.160/12/04 ...47/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 48 properly for the purpose of court fee and jurisdiction ? OPD
24. The plaintiff Smt. Om Wati Sharma has filed the suit for mandatory and permanent injunction and for recovery of mense profits. The relief claimed by the plaintiff by way of mandatory injunction is in fact the relief for possession. As per record, the plaintiff has filed the suit for mandatory injunction and for the purpose, she has valued the suit property at Rs.4,00,000/. Further, the plaintiff has valued the suit property for purpose of permanent injunction for Rs.130/ and she has also filed suit for recovery of Rs. 48,000/ and accordingly, as per Court Fees Act, the plaintiff was to file the court fees of Rs.6,248/, Rs.13/ and Rs.613.60 in pursuance of aforesaid reliefs claimed by her. However, the plaintiff has affixed the court fees of Rs. 2,900/ only and accordingly, the court fees is deficit to the tune of Rs.3,974.60. Accordingly, in the given facts and circumstances, the plaintiff is directed to pay/deposit the Suit No.160/12/04 ...48/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 49 deficit court fees within one month of this order and thereafter, decree sheet be prepared as per rules and Issue is decided accordingly.
25. Relief In the given facts and circumstances of the case, on the basis of material as placed on record and in view of aforesaid discussion, the suit of the plaintiff is decreed. Hence, a decree of mandatory injunction/ possession is passed with respect to suit property i.e. Second Floor in property bearing WZ283, Nangal Raya, Delhi as shown in the site plan Ex.PW1/B in favour plaintiff and against the defendant. Further, a decree of permanent injunction is also passed in favour of plaintiff and against the defendant whereby restraining him from creating any third party interest in the suit property i.e. Second Floor in property bearing WZ283, Nangal Raya, Delhi as shown in the site plan Suit No.160/12/04 ...49/50 Smt. Om Wati Sharma Vs. Sh. Sanjay Sharma ... 50 Ex.PW1/B in any manner. Further, the defendant is also directed to pay Rs.48,000/ to the plaintiff as claimed by her. Cost of suit is also awarded in favour of the plaintiff. The plaintiff is directed to pay/deposit the deficit court fees within one month of this judgment and thereafter, decree sheet be prepared as per rules. File be consigned to record room as per rules.
Announced in the open court (Barkha Gupta) today i.e.17.12.2013. ADJ - 03 (West)/Delhi Suit No.160/12/04 ...50/50