Delhi District Court
Lala Kanshi Ram S/O. Lala Badlu Ram vs Sh. Raghubar Dayal Garg And on 26 September, 2013
IN THE COURT OF SH VISHAL SINGH, CIVIL JUDGE9
(CENTRAL): DELHI
SUIT No. 294/13/93
UNIQUE ID NO. 02401C0029851997
IN THE MATTER OF:
1. LALA KANSHI RAM S/O. LALA BADLU RAM
THROUGH HIS LEGAL HEIRS
2. SH. JAGDISH RAI AGGARWAL
S/O. LATE KANSHI RAM.
3. SH. VED PRAKASH S/O. LALA KANSHI RAM
THROUGH HIS LEGAL HEIRS
A) SMT. PREM LATA W/O. LATE SH. VED PRAKASH
B) SH. MANISH GUPTA S/O. VED PRAKASH
C) SMT. VEENU MITTAL D/O. SH. VED PRAKASH
ALL R/O. H. NO. 25, ROAD NO. 41,
WEST PUNJABI BAGH, DELHI - 26. . . . PLAINTIFFS
VERSUS
1. SH. RAGHUBAR DAYAL GARG AND
2. SH. SATYA PARKASH GUPTA
BOTH S/O. LATE SH. LALA KANSHI RAM,
R/O. H. NO. 25, ROAD NO. 41,
WEST PUNJABI BAGH, DELHI - 110 026. . . . DEFENDANTS
Date of Instt. 13/10/1993
Date of Reservation of Judgment: 13/09/2013
Date of Judgment: 26/09/2013
Suit No. 294/13/93
Lala Kanshi Ram & Ors. Vs. Raghubar Dayal Garg & Anr 1
SUIT FOR MANDATORY INJUNCTION
JUDGMENT
The plaintiffs are joint owners of suit property bearing H. No. 25, Road No. 41, measuring 2209.26 sqr. yards, West Punjabi Bagh, Delhi - 26.
Defendants are the sons of plaintiff no. 1 and real brothers of plaintiffs no. 2 and 3.
Earlier the defendants were living separately. Sometime in the year 197172 defendants with their families requested the plaintiffs to allow them to stay in the suit property till they arranged some other accommodation for themselves. The plaintiffs allowed the defendants and their family members to stay with them in a portion of the suit property, as shown in the site plan attached with the plaint.
The relationship between the parties became strained and the families of the defendants allegedly started creating nuisance to the plaintiffs. As per plaint, the misbehaviour of the defendants started in January, 1992 when the plaintiffs no. 2 and 3 raised a wall in the suit property.
The plaintiffs do not want to keep the defendants as their licensee in the suit property and sent the legal notice dated 08/04/1993 to them. Upon the failure of the defendants to vacate the suit premises, the plaintiffs filed the present suit for mandatory injunction.
Summons were served upon the defendants to which they filed their separate written statements.
Suit No. 294/13/93 Lala Kanshi Ram & Ors. Vs. Raghubar Dayal Garg & Anr 2 Defendant no. 1 took the preliminary objection that he had already filed suit for permanent injunction regarding the same property against the plaintiffs, due to which the present suit is liable to be stayed U/s. 10 CPC. He denied that the suit property was solely owned by the plaintiffs. He asserted that the suit property was owned by plaintiff no. 1 and his five sons, including defendant no.1, who has 1/6th share in the suit property. He denied that the plaintiffs allowed him and his family members to stay in the suit property. He asserted that the suit property was constructed in the year 197172 and he occupies 1/6th share of the suit property in his own right since the time of its construction. He challenged the site plan of the suit property filed by the plaintiffs and filed his own site plan. He refuted the allegations of causation of nuisance by his family members. He denied the entire claim of the plaintiffs.
Defendant no. 2 took the objection that the plaintiffs have no locus standi to institute the suit as the suit property was joint property of Hindu Undivided Family, though, the Sale Deed dated 22/10/1964 of the suit property was in favour of the plaintiffs. He asserted that he had 1/6th share in the suit property and he was living in it in his own right. Defendant no. 2 asserted that the suit was barred by time and took the alternate defence of ownership by way of adverse possession over the suit property to the extent of his right, since the year 197172. He took the defence similar to the defence taken by defendant no. 1. He also denied the entire claim of the plaintiffs.
Replication was filed by the plaintiffs to the written statements of the Suit No. 294/13/93 Lala Kanshi Ram & Ors. Vs. Raghubar Dayal Garg & Anr 3 defendants in which they denied all the assertions of the defendants and reaffirmed the contents of the plaint.
Upon completion of pleadings, the following issues were framed on 16/11/1994:
1. Whether the suit is liable to be stayed U/s. 10 of CPC? (OPD).
2. Whether the suit is barred by time? (OPD).
3. Whether the plaintiff is entitled to mandatory injunction? (OPP).
4. Relief.
Issue no. 1 was treated as a preliminary issue and was decided by the court in favour of the plaintiff vide order dated 12/08/1997. Hence, this issue need not be decided again through this judgment.
The following additional issue as issue no. 4 was framed by the court through order dated 17/05/1996:
Issue No. 4: Whether the defendants are in possession of the suit property as owners thereof? (OPD).
Plaintiffs examined four witnesses in support of their case. PW1 is plaintiff no. 3 Ved Prakash. PW2 is plaintiff no. 2 Jagdish Rai Aggarwal. PW3 Ramesh Chander Gupta is a distant relative of both the parties. PW4 Mr. Dinesh Kumar is an attesting witness to the Will Ex. PW4/4 executed by deceased plaintiff no. 1 Lala Kanshi Ram.
Defendant no. 1 Mr. Raghubar Dayal Garg deposed as DW1, whereas, defendant no. 2 Sat Prakash Gupta deposed as DW2. Suit No. 294/13/93 Lala Kanshi Ram & Ors. Vs. Raghubar Dayal Garg & Anr 4 Now my findings on the issues are as under:
Issue No. 3: Whether the plaintiff is entitled to mandatory injunction? (OPP).
The plaintiffs would be entitled to the decree of mandatory injunction if they are able to prove that the defendants are their licensees in the suit property and that the defendants have failed to surrender their possession despite notice of termination of license.
The plaintiffs adduced the evidence of ownership over the suit property through certified copy of the sale deed Ex. PW2/7 in their favour. It is in the favour of all the plaintiffs as joint owners. The only objection taken by the defendants was that the suit property was purchased through the said sale deed out of the funds of Jai Bharat Trading Company, which was an HUF business. The defendants asserted that since they had also a share by birth in the HUF business, they were also entitled to equal rights of ownership of the suit property with the plaintiffs. The plaintiffs denied that the suit property was purchased from the funds of HUF business. The onus to prove the objection shifted to the defendants. However, the defendants gave no documentary proof of the HUF business to support their objection. The objection remained unproved by the defendants.
PW1 and PW2 sought to prove that the defendants had released their shares in the suit property after obtaining Rs.14,000/ each from plaintiff no. 1, through photocopies of two Release Deeds Mark X7 and X8, both dated 31/07/1956. The defendants challenged these documents as fake and fabricated. It was not claimed that the Release Deeds were registered. The plaintiffs did not Suit No. 294/13/93 Lala Kanshi Ram & Ors. Vs. Raghubar Dayal Garg & Anr 5 produce the original Release Deeds. There is no mention of the alleged Release Deeds in the pleadings of the plaintiffs. Moreover, no right, claim or interest of a person in an immovable property can be created, transferred or extinguished through a document without registration of the same, as per law. Thus, the documents Mark X7 and X8 are inadmissible in evidence.
Plaintiff no. 1 Lala Kanshi Ram expired during the trial of the suit. The plaintiffs no. 2 and 3 claimed that plaintiff no. 1 had executed the Will dated 12/11/1999 in their favour in respect of the suit property. The said Will was registered in the office of concerned SubRegistrar on 19/11/1999. PW1 produced the certified copy of the Will Ex. PW1/1. The execution of the Will was proved by one of its attesting witness, PW4 Dinesh Kumar.
The defendants objected to the genuineness of the Will and cross examined PW4 Dinesh Kumar but could not elicit anything in their favour. Even otherwise, considering the strained relations and pending suits between plaintiff no. 1 and the defendants, it is not surprising that plaintiff no. 1 excluded the defendants from succeeding to his properties. Hence the genuineness of the Will Ex. PW1/1 is not suspected.
The defendants admittedly came to occupy the portions of suit property sometime in the year 197172 but they have failed to establish that they are any more than licensees of the plaintiffs in the suit property.
The plaintiffs proved the issuance of legal notice, dated 08/04/1993, Ex. PW1/4 regarding termination of license of the defendants in the suit property. Suit No. 294/13/93 Lala Kanshi Ram & Ors. Vs. Raghubar Dayal Garg & Anr 6 No defence was taken by the defendants that the legal notice was not served upon them. As per plaint, the cause of action to institute the suit arose on 08/04/1993, when the legal notice of termination of the license was issued to the defendants. The present suit was instituted by the plaintiff on 13/10/1993. Thus, there seems to be no delay in the institution of the suit after the accrual of the cause of action.
The plaintiffs have proved that they are the owners of the suit property while defendants are their licensees. They have also proved that the defendants have failed to fulfill their obligation to surrender the licensed premises despite service of legal notice dated 08/04/1993. No evidence was led by defendant no. 2 regarding defence of ownership by way of adverse possession.
Issue No. 3 is decided in favour of the plaintiffs and against the defendants.
Issue No. 4:
Whether the defendants are in possession of the suit property as owners thereof? (OPD).
The defendants have failed to prove that they are in possession of the suit property as owners. Rather, the plaintiffs have proved that they are the exclusive owners of the suit property, while, defendants are their licensees.
Issue No. 4 is decided against the defendants and in favour of the plaintiffs.
Issue No. 2:
Whether the suit is barred by time? (OPD).
Suit No. 294/13/93 Lala Kanshi Ram & Ors. Vs. Raghubar Dayal Garg & Anr 7 The limitation shall be reckoned from the date of accrual of cause of action. In this case, the cause of action first arose in favour of the plaintiffs on 08/04/1993 when the legal notice of termination of license was issued to the defendants. The present suit was instituted by the plaintiff on 13/10/1993, well within the limitation period.
Issue No. 2 is decided in favour of the plaintiffs and against the defendants.
Relief:
The suit is decreed in favour of the plaintiffs and against the defendants. The defendants are directed through decree of mandatory injunction to hand over the peaceful and vacant possession of the suit premises in the portion of basement, mezzanine floor and garage to the plaintiffs, as shown in the site plan Ex. PW2/1 of H. No. 25, Road No. 41, measuring 2209.26 sqr. yards, West Punjabi Bagh, Delhi - 100 026. The plaintiffs shall be entitled to the cost of suit from the defendants. Decree sheet be prepared accordingly.
File be consigned to record room, after due completion.
Announced in open (VISHAL SINGH) court on 26/09/2013 CIVIL JUDGE/CENTRAL (Judgment contains 8 printed pages) DELHI: 26/09/2013 Suit No. 294/13/93 Lala Kanshi Ram & Ors. Vs. Raghubar Dayal Garg & Anr 8