Delhi District Court
Smt. Saroj Devi W/O Sh. Shankar Lal vs Sh. Rajiv Aggarwal on 19 September, 2019
IN THE COURT OF Ms. NEHA MITTAL: CIVIL JUDGE10, CENTRAL,
TIS HAZARI COURTS : DELHI
No. 1657/16
Smt. Saroj Devi W/o Sh. Shankar Lal,
R/o 102FF, West Mukherjee Nagar (West),
Delhi110009. ........... Plaintiff
VERSUS
1. Sh. Rajiv Aggarwal,
S/o Sh. Munna Lal Aggarwal,
R/o 1852, Cheera Khana, Nai Sarak,
Delhi110006.
2. Sh. Bal Kishan S/o Sh. Kanhaya Lal Khetan,
R/o 58 75, Govind Bali, Jogi Wara Nai Sarai,
Delhi110006.
3. Sh. Sunil Kumar Jain S/o Sh. Birmol Jain,
R/o 2526, Dharampura, Dariba Kalan,
Delhi110006. ......... Defendants
Date of Institution : 27.09.2004
Date of reservation of Judgment : 17.08.2019
Date of Judgment : 19.09.2019
SUIT FOR DECLARATION, MANDATORY INJUNCTION &
PERMANENT INJUNCTION
JUDGMENT
1. Vide this judgment, I shall dispose of the aforementioned suit. This is a suit for declaration and permanent injunction filed by the plaintiff against the CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 1 of 18 defendants.
PLAINT:
2. As per the averments made in the plaint, the brief facts are that the plaintiff Smt. Saroj Devi w/o Sh. Shankar Lal, r/o 108, First floor, West Mukherjee Nagar, Delhi is the owner of entire first floor, up to ceiling and without any roof rights consisting of three rooms, one drawing room, having an area of about 160 sq. yds. alongwith the undivided proportionate share in the lease hold rights of land therein fitted with independent water and electric connections, alongwith the right of way through the staircase from ground floor to first floor being part of the property municipal no.102, situated in the layout plan of Dr. Mukherjee Nagar Residental Scheme, known as West Mukherjee Nagar Delhi110009 (hereinafter referred to as suit property).
3. The chronological sequence of ownership of suit property as averred in the plaint is: (i) originally Sh. Mohri Ram s/o Ladha Ram was the owner of the property who sold the property on power of attorney basis to Sh. Surender Kumar and executed documents i.e. agreement to sell and general power of attorney in his favour
(ii) After reconstucting the same, Sh. Surender Kumar and Sh. Naresh Kumar acquired ½ share each in the first floor and second floor of the property as per agreement executed between them and sold the first floor of the property to Smt. Pushpa Devi w/o Sh. Hari Ram and executed documents in her favour in respect of first floor of the property (iii) Smt. Pushpa Devi further sold it to the present plaintiff on 07.3.96 and executed documents consisting of agreement to sell, receipt of payment, Will and general power of attorney registered on 07.3.96 and thus, the plaintiff has become owner of the suit property.
CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 2 of 18
4. It has further been averred that the plaintiff has obtained water and electricity connections installed in the property in her name and the property stands mutated in her name in the MCD records. It has further been averred that the plaintiff is living in the property ever since its purchase alongwith her family members. It has further been averred that the husband of plaintiff suffered losses in his business and suffered a mental shock and was unable to manage and control, and look after his properties therefore, he appointed Sh. Sunil Jain (defendant no. 3) as his general attorney. It has further been averred that the defendant no.3 in order to get the property mutated in the MCD records and for carrying out other objects in relation to the property obtained signatures of the plaintiff and her husband on number of blank papers and stamp papers.
5. It has further been averred that defendant no.3 in order to cheat the plaintiff and her husband with dishonest intentions also got defendant no.1 and defendant no.2 appointed as general and special attorneys from the plaintiff and got the documents registered. It has further been averred that the plaintiff in good faith on the persuasion of defendant no.3 executed a general power of attorney and special power of attorney both registered on 28.10.99 in favour of defendant no.1 Rajiv Aggarwal and a general power of attorney registered on 28.10.99 in favour of defendant no.2 Bal Kishan Khetan, in respect of the property.
6. It has further been averred that the defendant no.1 and 2 were not managing the property properly and had gone dishonest in their dealings and in order to grab the valuable property of the plaintiff had started claiming the property to be their own in collusion with defendant no.3. It has further been averred that apprehending that the defendant no.1 and 2 may have forged and fabricated documents in respect of the property on those blank papers and stamp papers whereon the defendant has obtained signatures of the plaintiff, the plaintiff has on CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 3 of 18 20.9.2001 canceled the general power of attorney, special power of attorney and Will granted and executed in favour of defendant no.1 vide Deed of Cancellation of General Power of Attorney which has been duly registered in the office of the Sub Registrar about which defendant no.1 was duly intimated on 20.9.01 itself on telephone as well as personally.
7. It has further been averred that likewise the plaintiff has on 13.9.04 canceled the general power of attorney, special power of attorney and Will granted and executed in favour of defendant no.2 vide Deed of Cancellation of general power of attorney and special power of attorney which has been duly registered about which defendant no.2 has also been informed personally as well as on telephone by the plaintiff. It has further been averred that the plaintiff has now learnt that the defendants are bent upon doing mischief with regard to the property on the basis of the canceled and illegal documents, which have lost legal force and are of no consequence. It has further been averred that the defendants came to the site accompanied with 10 to 12 muscle man at about 11 am on 10.9.04 and threatened to take forcible possession of the property on the assumption that the property belongs to them.
8. It has further been averred that the defendants have also extended the threat of creating third party interest in respect of the portion of the property on the basis of the canceled documents. It has further been averred that at present the plaintiff and her family members are residing in the property and are using the same for their residence, but the defendants are threatening to get the possession of the same with force and to transfer the same creating third party interests in the same.
9. Hence, the present suit has been filed praying therein:
CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 4 of 18 • to pass an order restraining the defendants from transferring, selling, mortgaging and or creating third party interest in the suit property; • to pass an order declaring General Power of Attorney, Special Power of Attorney and other documents which were executed on 28.10.99 by the plaintiff in favour of defendants no.1 & 2 to be null and void abinitio; • to pass an order declaring the documents, if any, executed by the defendants in respect of the property or portion of the property after the cancellation of General Power of Attorney, Special Power of Attorney executed by the plaintiff in favour of defendants to be canceled, void abinitio, illegal and of no consequence;
• to restrain the defendants, their agents, assigns or anybody from taking forcible possession of the suit property.
WRITTEN STATEMENT:
10. Summons were issued to the defendants and written statement was filed.
11. In written statement, defendants no.1 & 2 have stated that plaintiff herself sold the property and has received sale consideration amount and as such she cannot seek cancellation of the said documents which she knowingly executed and got registered in the office of the SubRegistrar. It is also stated that the suit is not maintainable as the answering defendants have already sold / transferred the property in dispute to one Sh. Dhirender Kumar Dikshit for a valuable consideration by executing necessary documents such as GPA, agreement to sell etc. dt. 12.11.99 and the answering defendants are left with no right, title or interest of any kind in respect of property in dispute. It is further stated that Sh. Dhirender Kumar Dikshit is, thus, necessary party. It is further stated that the documents sought to be canceled were executed for a consideration of Rs.2,50,000/ and thus under the provisions of section CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 5 of 18 202 of Indian Contract Act such agency cannot be canceled unilaterally. It is further stated that plaintiff was the owner of the property in dispute at one stage. However, she voluntarily and willingly sold /transferred the said property for valuable consideration by executing necessary documents of sale and as such after execution of said documents she is no longer owner of the suit property.
12. In his written statement, defendant no.3 stated that the defendant no.1 & 2 had sold the suit property to Sh. Dhirender Kumar Dixit for valuable consideration of Rs.3,20,000/ and executed necessary sale documents on 12.11.99, as such alleged cancellation deed dt. 20.9.2001 and 13.9.04 have no value in the eyes of law and are against the provision of section 202 of Indian Contract Act, as such plaintiff is not entitled for relief claim and suit is liable to be rejected. It is further stated that Sh. Dhirender Kumar Dixit further sold the property in dispute to defendant no.3 for a valuable consideration of Rs.3,30,000/ and executed sale documents dt. 27.5.2000 in favour of defendant no.3 and also handed over the suit property to defendant no.3. It is further stated that plaintiff does not have the original title documents of suit property in her possession and the same are in possession of the defendant no.3 being rightful purchaser of the suit property. It is further stated that on 27.5.2000, defendant no.3 after taking the physical possession of the suit property from seller Sh. Dhirender Kumar Dixit, kept his goods there and thereafter locked the same as he was residing at other place. It is further stated that plaintiff broke open the lock and took the possession of the suit property as trespasser and on coming to know the said fact, defendant no.3 lodged a police complaint at PS Mukherjee Nagar and also filed a criminal complaint u/s. 200 CrPC and section 156(3) CrPC before Ld. MM, Delhi upon which FIR no.291/05 u/s. 380/452/120 IPC was registered. It is further stated that defendant no.3 has already filed a suit for recovery of possession, perpetual injunction and damages / mesne profit against the plaintiff and her husband Sh. Shankar Lal which is pending before Ld. ADJ and is fixed for 07.5.15.
CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 6 of 18 REPLICATION:
13. Replication was filed by the plaintiff to the written statement of defendants wherein the plaintiff has denied all the averments made in the written statement and reinstated the averments made in the plaint.
ISSUES:
14. Following issues were framed vide order dt. 07.12.18:
1. Whether plaintiff is entitled to restraint order / decree of permanent injunction, as prayed for in prayer (a) of the plaint? OPP
2. Whether the plaintiff is entitled to relief of declaration as prayed for in prayer (b) of the plaint? OPP
3. Whether the plaintiff is entitled to relief of declaration as prayed in prayer (c) of the plaint? OPP
4. Whether the plaintiff is entitled to restraint order / decree of permanent injunction, as prayed for in prayer (d) of the plaint? OPP
5. Whether the suit is barred in view of Section 202 of Indian Contract Act? OPD.
6. Whether suit of the plaintiff is maintainable against defendants no. 1&2 in view of preliminary objection no.5&6 of the written statement? OPD1 & 2
7. Whether suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
8. Whether the suit of the plaintiff is bad for non joinder / misjoinder of necessary parties? OPD3 CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 7 of 18
9. Relief.
EVIDENCE:
15. To substantiate its case, the plaintiff has examined three witnesses.
16. PW1 Sh. Shankar Lal tendered his affidavit as ExPW1/1 in evidence and has relied upon the document i.e. the site plan as ExPW1/A, Mark A is the copies of affidavit, receipt & Will dt. 25.2.92, Mark B is the copies of GPA dt. 22.4.93, Mark C is the copies of GPA, SPA, agreement to appoint arbitrator, agreement to sell, Will & receipt dt.14.3.96, election I card of plaintiff as ExPW1/E (OSR), copies of electricity bills as ExPW1/F (colly running in 52 pages)) (OSR), copy of property tax bills as ExPW1/G (OSR) (colly running in 21 pages), copy of cancellation of GPA & SPA both dt. 10.9.04 (OSR) (colly running in 4 pages) as ExPW1/I, copy of marriage card of daughter of plaintiff as ExPW1/K (OSR), copy of list of property holders issued by MCD as ExPW1/M (OSR), Mark D is photocopy of bail order dt. 29.7.05 in FIR no.291/05, Mark E is the photocopy of chargesheeet dt. 14.12.05 in FIR no.291/05, ExPW1/P is copies of telephone bills (OSR) (colly running in 34 pages), ExPW1/Q is copies of telephone bills (OSR) (colly running in 08 pages) and Mark F is the photocopy of complaint dt. 06.11.01 to SHO PS Mukherjee Nagar.
17. PW2 is the plaintiff herself who has tendered affidavit ExPW2/1 in her evidence and has relied upon the documents i.e. ExPW2/A is computer generated copy of electricity bills in the name of Sh. Shankar Lal (colly running in 40 pages), ExPW2/B is show cause notice dt. 16.1.07 issued by MCD, ExPW2/C is receipt of property tax (colly running in 4 pages), ExPW2/D is cancellation of GPA dt. 20.9.01 (colly running in 2 pages), ExPW2/E is cancellation of SPA dt. 20.9.01 (colly running in 2 pages), ExPW2/F cancellation of Will dt. 20.9.01, ExPW2/G CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 8 of 18 cancellation of GPA dt. 10.9.04 (colly running in 2 pages), ExPW2/H is cancellation of SPA dt. 10.9.04 (colly running in 2 pages), ExPW2/I is letter dt. 27.7.05, ExPW2/J is computer generated telephone bill in the name of Shankar Lal (colly running in 37 pages), EXPW1/K is computer generated telephone bill in the name of plaintiff (colly running in 6 pages).
18. PW3 Sh., Parveen Kumar Rana, UDC from the office of Sub Registrar, Kashmere Gate, Delhi. He proved the documents i.e. ExPW3/A is certified copy of GPA dt. 28.10.99, ExPW3/B is the certified copy of GPA dt. 28.10.99, ExPW3/C is the certified copy of SPA dt. 28.10.99, ExPW3/D is the certified copy of GPA dt.
28.10.99, ExPW3/E is the certified copy of cancellation of GPA dt. 20.9.01, ExPW3/F is the certified copy of cancellation of SPA dt. 20.9.01, ExPW3/G is the certified copy of cancellation of Will dt. 20.9.01, ExPW3/H is the certified copy of Will dt. 28.10.99, ExPW3/I is the certified copy of cancellation of GPA dt. 13.9.04, ExPW3/J is the certified copy of cancellation of SPA dt. 13.9.04.
DEFENDANT EVIDENCE
19. Defendant no.1 Sh. Rajiv Aggarwal examined himself as DW1 in support of case of defendants no.1 & 2. DW1 tendered his affidavit in evidence as ExDW1/1 and relied upon the documents i.e. Mark A is the photocopy of agreement to sell, Mark B and Mark C are the copies of receipts amounting Rs.2,40,000/ and Rs.10,000/, Mark D is the copy of possession letter, Mark E is the copy of agreement of appointment of arbitrator, Mark F is the copy of NOC, Mark G is the copy of indemnity bond, Mark H is the copy of GPA, Mark I is copy of Will, Mark J is copy of affidavit executed by plaintiff, Mark K is copy of agreement to sell dt. 12.11.99, Mark L is copy of possession certificate, Mark M is copy of payment receipt, Mark P is copy of Will executed in favour of one Sh. Dhirender Kumar Dikshit.
CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 9 of 18
20. Defendant no.3 examined himself as D3W1. D3W1 tendered his affidavit as ExDW3/A and has relied upon the documents i.e. ExDW3/1 is copy of registered Will dt. 27.5.2000, ExDW3/2 is the copy of receipt dt. 27.5.2000, ExDW3/3 is the copy of agreement to sell dt. 27.5.2000 and ExDW3/4 is the copy of affidavit dt. 27.5.2000 of Sh. Dhirender Kumar Dixit and ExDW3/5 is the copy of possession letter dt. 27.5.2000.
FINAL ARGUMENTS:
21. I have heard the final arguments and perused the record and the written submissions filed on behalf of the parties.
FINDINGS OF THE COURT: My issue wise findings are as follows:
Issue no. 2 & 5:
Issue No. 2. "Whether the plaintiff is entitled to relief of declaration as prayed for in prayer (b) of the plaint? OPP" Issue No. 5. "Whether the suit is barred in view of Section 202 of Indian Contract Act? OPD."
22. Both the issues are being taken up together as they involve common questions of law and fact. The burden to prove the second issue is on plaintiff and the burden to prove the fifth issue is on the defendant no. 1 & 2.
23. It has been submitted by the counsel for plaintiff that since she has executed cancellation deeds ExPW3/E dt. 20.9.01, ExPW3/F dt. 20.9.01, ExPW3/G dt. 20.9.01, ExPW3/I dt. 13.9.04 & ExPW3/J dt. 13.9.04 thereby canceling documents in favour of defendant no. 1 & 2, the corresponding canceled documents i.e. GPA, SPA and other documents which were executed on 08.10.99 be declared as CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 10 of 18 null and void. Per contra, the counsel for defendants has submitted that neither was any notice of cancellation served upon the defendants nor the plaintiff is entitled to cancel the documents in view of section 202 of Contract Act. It is rather submitted on behalf of defendants that the plaintiff had sold the suit property to defendant No. 1 and had received consideration for the same.
24. At the outset, it is necessary to refer to the meaning of the term "power of attorney". A power of attorney is a delegation of authority in writing by which one person is empowered to do an act in the name of the other. The person who acts on behalf of another person (the principal) by his authority, express or implied, is called an agent. Thus, a power of attorney holder is an agent within the meaning of Section 182 of Contract Act. Generally, a power of attorney can be terminated or canceled by the principal by revoking his authority or by the power of attorney holder renouncing his authority. According to Section 201 of the Contract Act, an agency can be terminated by the principal by revoking his authority or by the agent renouncing his authority, unless such revocation is prohibited under Section 202 Contract Act.
Section 202 Contract Act is as under:
Termination of agency, where agent has an interest in subject matter.--Where the agent has himself an interest in the property which forms the subjectmatter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
A bare perusal of above provision show that a party cannot unilaterally cancel any document in which the interest of some other person has been created.
25. In the present case, defendant No. 1 states that he had purchased the CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 11 of 18 property from the plaintiff by way of GPA, SPA, Agreement to Sell, Possession Letter, Will, Receipt etc. However, it is pertinent to mention that the original of none of these documents have been brought on record.
The agreement to sell Mark A executed in favour of defendant no. 1 though mentioned the sale consideration of Rs. 2,50,000 but said agreement to sell is executed on a stamp paper of Rs. 2 only. Since no objection qua the stamp duty was taken at the time of evidence, the same is now deemed to be waived of as per Section 36 of Stamp Act. However, this agreement to sell is unregistered. Also, its original has not been brought before the Court and hence, the document has not been proved in accordance with law. The other documents such as receipt Mark B has also not been proved in accordance with law as its original has not been produced. Hence, it cannot be looked into for ascertaining if any consideration has been paid by defendant no. 1 to the plaintiff w.r.t. the suit property. GPA ExPW3/B in favour of defendant no. 1 does not talk about consideration. Thus, there is nothing on record to prove that consideration has been paid by defendant No. 1 to the plaintiff. The defendants were, thus, merely acting in fiduciary capacity on behalf of plaintiff. Hence, bar of section 202 Contract Act does not apply to it.
Will ExPW3/H, being a unilateral document, can undoubtedly be canceled by the executant and hence, the Cancellation of Will ExPW3/G is valid and legal.
GPA ExPW3/A was executed by Smt. Saroj Devi in favour of Bal Kishan Khetan defendant no. 2 is registered but this document also does not confer any title in the immovable property. GPA without sale consideration is not irrevocable attorney as per Section 202 of Contract Act because this GPA does not mention that same is being executed in lieu of any consideration. Similarly, SPA ExPW3/C has also been executed in favour of Bal Kishan Khetan which is also registered document but again this document also does not confer any legal title in the immovable property as this document is also not executed as per Section 202 of CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 12 of 18 Contract Act.
26. The plaintiff has duly proved the cancellation deeds ExPW3/E dt. 20.9.01, ExPW3/F dt. 20.9.01, ExPW3/G dt. 20.9.01, ExPW3/I dt. 13.9.04 & ExPW3/J dt. 13.9.04 by examining PW3. The genuineness of the same has not been denied by the defendants. Their only objection is that the documents cannot be canceled in view of section 202 of Contract Act. Since neither the documents nor the consideration has been proved, there is no legal bar to cancellation of documents. Hence, documents Ex. PW3/A, Ex. PW3/B, Ex. PW3/C and Ex. PW3/H have been duly canceled by the plaintiff from the date of execution of cancellation deeds ExPW3/E dt. 20.9.01, ExPW3/F dt. 20.9.01, ExPW3/G dt. 20.9.01, ExPW3/I dt. 13.9.04 & ExPW3/J dt. 13.9.04.
Issue No. 2 is decided accordingly and issue No. 5 is decided in favour of the plaintiff and against the defendants.
Issue no.3: "Whether the plaintiff is entitled to relief of declaration as prayed in prayer (c) of the plaint? OPP"
27. The burden to prove this issue is on plaintiff.
28. The plaintiff has prayed for declaration of documents executed by the defendants in respect of suit property after the cancellation of GPA, SPA and other documents as null and void. However, perusal of record shows that the cancellation deeds were executed on 20.9.01 and 13.9.04 whereas all the other documents such as GPA, SPA, agreement to sell, receipt, possession letter etc. through which the defendants are claiming their rights have been executed on various dates i.e. 12.11.99 and 27.5.00 which are prior to the dates of cancellation. No other document has been brought on record which has been executed after the execution of cancellation deed neither has any averment in this regard has been made by the plaintiff. Thus, there is CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 13 of 18 no document qua which this relief can be granted. Hence, this issue is decided against the plaintiff and in favour of defendants.
Issue no.4: "Whether the plaintiff is entitled to restraint order / decree of permanent injunction, as prayed for in prayer (d) of the plaint? OPP"
29. The burden to prove this issue is on the plaintiff.
30. The plaintiff has relied upon election I card of plaintiff as ExPW1/E (OSR), ExPW2/A is computer generated copy of electricity bills in the name of Sh. Shankar Lal (colly running in 40 pages), ExPW2/B is show cause notice dt. 16.1.07 issued by MCD, ExPW2/C is receipt of property tax (colly running in 4 pages), ExPW2/I is letter dt. 27.7.05, ExPW2/J is computer generated telephone bill in the name of Shankar Lal (colly running in 37 pages) to show her possession.
Even otherwise, defendant no. 3 has admitted the possession of plaintiff saying that the plaintiff had unlawfully obtained the possession by breaking open the locks of the suit property. DW1 has also admitted in his crossexamination that the plaintiff is in possession of the suit property.
31. The question is whether the plaintiff is entitled to the relief of injunction for protection against forcible dispossession. To answer this, it has to be seen whether the suit of plaintiff for simpliciter injunction maintainable without claiming the relief of declaration.
In Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors AIR 2008 SC 2033, the Hon'ble Supreme Court has set out the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and /or possession with injunction, as a consequential relief. It was held that:
CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 14 of 18 "Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction."
32. In the present case, defendant no. 3 is claiming that he is the owner of the suit property on the basis of documents ExDW3/1 to ExDW3/4. The plaintiff has not brought on record the original documents on the basis of which she is claiming her title over the suit property. Further, PW1 has admitted in his crossexamination that the plaintiff is not having the original documents of the suit property. Also, PW2 i.e. plaintiff has stated in her crossexamination that Ms. Pushpa may have filed any suit against me regarding the suit property. PW1 has expressed his ignorance towards the fact if any suit has been filed against the plaintiff by Smt. Pushpa Devi with respect to suit property. These facts in toto raise a cloud on the title of the plaintiff over the suit property. Hence, in view of the principles laid down in Anathula's case, plaintiff is not entitled to relief of injunction simpliciter without seeking declaration of title.
Thus, this issue is decided against the plaintiff and in favour of the defendants.
CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 15 of 18 Issue no.1: "Whether plaintiff is entitled to restraint order / decree of permanent injunction, as prayed for in prayer (a) of the plaint? OPP"
33. The burden to prove this issue is on the plaintiff.
34. However, in view of finding on issue no. 4, this issue is decided against the plaintiff and in favour of the defendants as the plaintiff has failed to prove her locus to be entitled to the relief of injunction claimed.
Issue no.7: "Whether suit has not been properly valued for the purpose of court fees and jurisdiction? OPD"
35. The burden to prove this issue is on the defendants.
36. However, no evidence has been led by the defendants on this issue neither have any arguments been advanced.
Hence, in the absence of evidence, this issue is decided against the defendants and in favour of the plaintiff.
Issue no.8: "Whether the suit of the plaintiff is bad for nonjoinder / misjoinder of necessary parties? OPD3"
37. The burden to prove this issue is on the defendant no. 3.
38. It is asserted by counsel for defendant no. 3 that the suit property was purchased by him from one Sh. Dhirender Dixit who had purchased the same from defendant no. 1 & 2 and hence, he is a necessary party to the suit. The counsel for defendant no. 1 & 2 have also raised the same argument.
However, it is an admitted position that at the time of filing of present suit, the CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 16 of 18 said Dhirender Dixit had already transferred the suit property to defendant no. 3 and thus, he was left with no interest in the same. Also, defendants cannot be allowed to blow hot and cold in the same breath. On one hand, it is being pleaded on behalf of defendant no. 1& 2 that since they do not have any interest in the suit property having sold it further, no cause of action arises against them. Whereas on the other hand, it is being argued that Sh. Dhirender Dixit is necessary party though he too did not have any interest in the suit property at the time of filing of the suit.
39. The reliefs sought by plaintiff pertain to documents executed by and in favour of defendant no. 1 & 2; and relief against defendant no. 3 is sought qua threat of dispossession. None of the reliefs claimed are in any way connected to Sh. Dhirender Dixit.
Hence, this issue is decided against the defendants and in favour of the plaintiff.
Issue no.6: "Whether suit of the plaintiff is maintainable against defendants no. 1&2 in view of preliminary objection no.5&6 of the written statement? OPD 1 & 2"
40. The burden to prove this issue is on the defendants.
41. The objection taken by defendants in preliminary objection no.5&6 of the written statement is regarding nonjoinder of necessary party and locus of plaintiff to file the present suit.
In view of findings on issue no. 8, this issue is decided against the defendants and in favour of the plaintiff.
42. In view of the foregoing discussion, the plaintiff is entitled to the relief of cancellation of documents Ex. PW3/A, Ex. PW3/B, Ex. PW3/C and Ex. PW3/H from the date of execution of the cancellation deeds. The suit of the plaintiff is CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 17 of 18 dismissed qua the remaining reliefs.
43. No order as to costs.
44. Decree sheet be prepared accordingly.
45. File be consigned to the record room after necessary compliance.Digitally signed
NEHA by NEHA MITTAL
Announced in the open MITTAL Date: 2019.09.20
16:42:43 +0530
Court on 19.09.2019 (Neha Mittal)
Civil Judge10 (Central)
THC/Delhi/19.09.2019
CS No. 1657/16 Smt. Saroj Devi Vs. Rajiv Aggarwal etc. 18 of 18