Delhi District Court
Ashok Kumar vs Smt. Suman Lata on 19 January, 2015
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02, (NE)
KARKARDOOMA COURTS, DELHI
CS No. 137/14
Unique ID No : 02402C0148152010
In the matter of:
Ashok Kumar
S/o Sh. Ram Ji Lal
R/o Phase 10, Lok Vihar,
Shiv Vihar, Karawal Nagar,
Delhi110094
Also
At Village Sisoli,
Post Office Khas,
District Meerut,
U. P. ..............Plaintiff
Versus
Smt. Suman Lata
W/o Sh. Naresh Kumar,
R/o U51B, Gali No. 4,
Lok Vihar, Shiv Vihar,
Karawal Nagar, Delhi94. .............. Defendant
Date of Institution : 29.05.2010
Received in this Court :06.02.2014
Date of Arguments : 19.01.2015
Date of Judgment : 19.01.2015
Decision : Suit decreed
CS No. 137/14 1/18
Ashok Kumar Vs. Suman Lata
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Suit for possession, declaration, permanent injunction, & mesne
profit/damages
J U D G M E N T
1. The plaintiff filed this suit for possession, declaration, permanent injunction, & mesne profit/damages against the defendant regarding property measuring 50 sq. yards out of khasra No. 18, kila No. 8, plot No. U51/B situated at Village Karawal Nagar, Delhi ( hereinafter called the suit property as shown red colour in the site plan).
2. It is stated in the plaint that plaintiff is the owner of the suit property having purchased on 04.02.2015 from Peer Mohd. for Rs. 50,000/ through registered GPA, Agreement to Sell, Payment Receipt and Will. Peer Mohd. has purchased the suit property from Sita Ram who purchased from Om Pal Singh. OM Pal Singh has purchased its from Tej Pal Singh who inter alia purchased the same from Rohtash Singh. The Rohtash Singh stated to have purchased the suit property from Jai Bhagwan. ( both the parties are claiming their title through Jai Bhagwan). As contended, after purchasing the property, plaintiff raised the construction. The defendant trespassed in the suit property on 22.07.2000. Plaintiff made call at 100 number and kalandara U/S 145 Cr. P. C. Vide DD No. 6 A was filed before the SDM. The defendant claimed to have purchased the suit property from Ms. Kusum Lata who purchased it from Smt. Surujmukhi and Surujmukhi is stated to have purchased the same from Jai Bhagwan on 06.03.96. Complaint was also made by the plaintiff to the police on 01.08.2000 and as the defendant is in unauthorized and CS No. 137/14 2/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. illegal possession of the suit property without any right, title or interest in the same, this suit is filed by the plaintiff against the defendant. The plaintiff has prayed for decree of permanent injunction for restraining the defendant from creating any third party interest in the suit property, decree for possession, decree for declaration that plaintiff is the rightful owner of the suit property and mesne profits.
3. After the service of summons upon the defendant, the written statement was filed contending that this suit is not maintainable and filed without cause of action, the plaintiff has concealed the material facts. The defendant contended that plaintiff has no locus standi to file this suit. While denying the relevant contentions of the plaintiff in the plaint, defendant denied the right, title and interest of the plaintiff in the suit property and claimed that she has purchased it on 07.03.2000 from Smt. Kusum who has purchased it from Smt. Surujmukhi. The Smt. Surujmukhi claimed to have purchased the suit property from Jain Bhagwan and Hari Shanker who jointly purchased 100 Sq. yards from Smt. Beena in 1998. The defendant further denied other contentions ofhte plaintiff in the plaint and prayed to dismiss this suit with cost.
4. Replication to the WS of the defendant was filed by the plaintiff whereby the plaintiff has reiterated the averments made in the plaint denying the contentions of the defendant in the written statement.
5. In view of the pleading of the parties, following issues were framed vide order dt. 25.01.2011:
(i) Whether the plaintiff's case suffers from suppression of material CS No. 137/14 3/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. facts ? OPD
(ii) Whether the plaintiff is the owner of the suit property ? OPP
(iii) Whether the defendant had trespassed into the suit property illegally on 22.07.2000 ? OPP
(iv) Whether the documents on which the defendant is claiming the ownership of the suit property are forged and fabricated ?( OPP).
(v) Whether the plaintiff is entitled to a decree of permanent injunction as prayed in the plaint ? ( OPP)
(vi) Whether the plaintiff is entitled to decree of declaration and possession as prayed in the plaint ? OPP
(vii) Whether the plaintiff is entitled to a decree of mesne profits as prayed in the plaint ? OPP
(viii) Costs.
And the case was fixed for plaintiff's evidence.
6. The plaintiff filed his affidavit by way of evidence Ex. PW1/1 and has examined himself as PW 1 in support of the case. The witness deposed as per averments made in the plaint and also deposed regarding the relevant documents i.e. Site Plan Ex. PW1/A; GPA, Agreement to Sell, Payment Receipt and Will all dated 04.02.2000 executed by Peer Mohd. in favour of the plaintiff Ex. PW1/B to Ex. PW1/E; GPA, Agreement to Sell, Affidavit, Payment Receipt all dated 05.03.99 executed by Sita Ram in favour of Om Pal are Ex. PW1/F to Ex. PW1/I; GPA, Agreement to Sell, Affidavit and Payment Receipt all dated 23.12.98 executed by Om Pal Singh in favour of Sita Ram Ex. PW1/J to Ex. PW1/M; GPA, CS No. 137/14 4/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. Agreement to Sell, Affidavit and Payment Receipt all dated 16.11.98 executed by TeJ Pal in favour of Om Pal are Ex. PW1/N to Ex. PW1/Q; GPA, Agreement to Sell, Affidavit and Payment Receipt all dated 04.03.98 Ex. PW1/R to PW1/U and GPA, Agreement to Sell, Affidavit, Payment Receipt all dated 22.01.98 executed by Jain Bhagwan in favour of Rohtash Singh are Ex. PW1/V to PW1/Y. Copy of kalandara is mark Ex. PW1/1 and the copy of the order passed by SDM dated 07.01.10 Ex. PW1/2. Copy of Judgment dated 23.04.10 passed by Ld. ASJ was Ex. PW1/Z1.
Mr. Jai Bhagwan ( through whom both the parties are claiming their title of the suit property) was examined as PW2 who deposed that he sold his share i.e. suit property on 22.01.98 to Sh. Rohtash Singh vide GPA, Agreement to Seel, Affidavit and payment Receipt all dated 22.01.98 which is already Ex. PW1/V to Ex. PW1/Y and it was vacant when sold. The witness deposed that the possession of the suit property was handed over to Sh. Rohtash Singh.
Mr. Peer Mohd. was examined as PW3 who deposed that he sold the suit property to the plaintiff vide registered GPA, Agreement to Sell, Receipt and Will and possession was handed over to the plaintiff vide documents Ex. PW1/B to Ex. PW1/E. As no other witness was examined by the plaintiff, the PE was closed and case was fixed for DE.
7. The defendant on the other hand filed her affidavit by way of evidence Ex. DW1/1 and was examined as DW1 who deposed regarding the facts as mentioned in the WS and claimed to be the owner of the suit property. The DW1 deposed regarding the GPA executed by Hari Shanker and Jai Bhagwan in favour of Smt. CS No. 137/14 5/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. Surujmukhi Ex. DW1/D dated 14.01.12, Agreement to Sell executed by Jai Bhagwan in favour of Surujmukhi Ex. DW1/E dated 14.01.12, payment Receipt Ex. DW1/F and Agreement Ex. DW1/G. The DW1 further deposed that GPA, Agreement to Sell, Receipt are Ex. DW1/H, DW1/J and DW1/I respectively. The GPA, Will and Agreement to Sell executed by Smt. Kusumlata in favour of Smt. Suman Lata/defendant is exhibited as Ex. DW1/L , DW1/M and DW1/N respectively.
Smt. Surujmukhi was examined as DW2 vide affidavit Ex. DW2/A who deposed that she has purchased the suit property from Sh. Jai Bhagwan vide GPA, Agreement to Sell and Receipt. As no other witness remained to be examined by the defendant, the DE was closed.
8. I have heard the Ld. counsel for the parties and gone through the relevant material on records. I have also considered the relevant provisions of law.
Having drawn my attention to the pleadings of the parties, testimony of witnesses and materials on records, it is submitted by learned counsel for the plaintiff that plaintiff has proved his case and the defendant have no right, title or interest in the suit property and it has been proved that the plaintiff is the owner of the suit property. The Ld. Counsel for the plaintiff prayed to pass decree in favour of plaintiff and against the defendant.
The Ld. Counsel for the defendant on the other hand, having drawn my attention to the testimony of the witnesses and documents on records submitted that the plaintiff has failed to prove the case and discharge the onus. It is also submitted by Ld. counsel for the defendant that the suit property CS No. 137/14 6/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. was purchased by the defendant and possession of the same was handed over, plaintiff has no locus standi to file this suit and plaintiff has concealed the material facts and therefore, the suit is liable to be dismissed.
9. I have given my thoughtful consideration to the submissions made on behalf of the parties. My findings issuewise are as under : Issue No. I to VIII
(i) Whether the plaintiff's case suffers from suppression of material facts ? OPD
(ii) Whether the plaintiff is the owner of the suit property ? OPP
(iii) Whether the defendant had trespassed into the suit property illegally on 22.07.2000 ? OPP
(iv) Whether the documents on which the defendant is claiming the ownership of the suit property are forged and fabricated ?( OPP).
(v) Whether the plaintiff is entitled to a decree of permanent injunction as prayed in the plaint ? ( OPP)
(vi) Whether the plaintiff is entitled to decree of declaration and possession as prayed in the plaint ? OPP
(vii) Whether the plaintiff is entitled to a decree of mesne profits as prayed in the plaint ? OPP
(viii) Costs.
10. The onus to prove the issue No. 1 was upon the defendant whereas the other CS No. 137/14 7/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. issues were remained to be proved by the plaintiff. As all of these issues are interconnected, these issues are examined and adjudicated together.
11. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities. In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe that "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of CS No. 137/14 8/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
probability" would serve the purpose for obtaining a decree".
12. Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party.
Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
Issue No. I, III and IV
(i) Whether the plaintiff's case suffers from suppression of material facts ? OPD
(iii) Whether the defendant had trespassed into the suit property illegally on 22.07.2000 ? OPP
(iv) Whether the documents on which the defendant is claiming the ownership of the suit property are forged and fabricated ?( OPP).
13. The plaintiff and defendant, both claimed themselves as the owner of the suit property. The brief and relevant facts for the filing of this suit along with the CS No. 137/14 9/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. defence of the defendant has mentioned at the outset. There is no dispute by the parties regarding the ownership of Jai Bhagwan and both of them are claiming their title through him only. The evidence of the parties led before this Court is somehow on the similar lines as contended in the plaint and written statement. The defendant claimed to have purchased the suit property from Smt. Kusum Lata on 07.03.2000 who purchased from Smt. Surujmukhi in the year, 1997. Surujmukhi claimed to derive her title from Jai Bhagwan in the year 1996. I have gone through the documents relied by the defendant in support of contentions of ownership along with her testimony recorded before this court. The documents relied by the defendant stated to be executed by Smt. Surujmukhi in favour of Kusum Lata are dated 07.10.97. the defendant has relied upon the GPA executed by Smt. Kusum Lata in her favour which is dated 07.03.2000. It appears that during the cross examination of DW1, the testimony of the witness was totally shattered as she failed to answer all the material questions asked during her crossexamination. The defendant claimed to have purchased the suit property from Kusumlata but interestingly she is not aware of her whereabouts. The defendant during cross examination claimed to have purchased the suit property in the year 2003 contrary to the defence in the WS. The witness further failed to answer during cross examination that who had executed any document in favour of Surujmukhi or Kusumlata regarding the suit property and again claimed that Kusumlat has executed the documents in her favour in the year 2003. The defendant failed to corroborate the defence of the suit property having purchased from Jai Bhagwan by Smt. Surujmukhi and admitted that Jai Bhagwan never executed sale documents CS No. 137/14 10/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. with regard to the property in question in favour of Surujmukhi in her presence or ever handed over physical possession to her. The defendant further claimed to have paid the consideration amount of Rs. 75,000/ in cash against the consideration on record of Rs. 65,000/ only and further to disclose the details regarding payment of consideration. The defendant further claimed that she has registered sale deed in her name executed by Smt. Kusum Lata contrary to the defence. It is interesting that the defendant during crossexamination deposed to have purchased the suit property in 2003 from Kusum Lata but claimed the possession was taken by her in the year 2000, third month. The testimony of the defendant was further shattered during her crossexamination regarding the execution of documents in favour of Smt. Surujmukhi or Kusumlata. In nut shell the testimony of the DW1 appears to be not reliable. Smt. Surujmukhi was examined as DW2 by the defendant in support of contentions but she also failed to support the case of the defendant.
14. Sh. Jai Bhagwan from who both the parties claimed their title was examined as PW2 who supported the case of the plaintiff and the testimony of the PW2 remained uncontroverted and unimpeached in one way or the other. Jai Bhagwan during crossexamination categorically denied having executed any sale documents in respect of the suit property in favour of Smt. Surujmukhi. The witness has even denied his photographs on the documents relied by the defendant allegedly executed by Jai Bhagwan in favour of Surujmukhi in support of contentions. There is no reason to disbelieve the testimony of PW2. The contention of the plaintiff was further corroborated and supported in view of the testimony of PW3 and the chain of the documents lying on record which are duly proved. The testimony of the CS No. 137/14 11/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. plaintiff/PW1 also remained unimpeached in one way or the other and therefore there is no reason to disbelieve the testimony of the PW1. The defendant failed to prove that the plaintiff has suppressed any material facts. As regards the trespass in the suit property/possession, the police complaint along with kalandara is proved on record and is also admitted. In view of the testimony PWs, DWs and documents on record, it is proved that plaintiff has purchased the suit property from Jai Bhagwan and received the possession of the vacant plot. The defendant thereafter trespass the suit property. The issue No. I, III and IV are accordingly decided against the defendant and in favour of the plaintiff.
Issue No. II & VI
(ii) Whether the plaintiff is the owner of the suit property ? OPP
(vi) Whether the plaintiff is entitled to decree of declaration and possession as prayed in the plaint ? OPP
15. It is settled law that title of immovable property above the value of Rs. 100/ can only be transferred by way of a registered instrument as prescribed Under Section 17 of the Indian Registration Act, 1908 and by way of documents of sale as recognized under Section 54 of the Transfer of the Property Act. As held in AIR 1969, SC 1316, the documents of which registration is necessary under the transfer of Property Act ( such as under Section 54 of the TP Act) but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction of acting any immovable property comprise therein and do not affect any such immovable CS No. 137/14 12/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. property.
16. This court is guided in view of the judgment of Hon'ble Supreme Court in Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) . Unless there is a proper registered sale deed, title of an immovable property does not pass. The Hon'ble Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance ( para
12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872( para 13) and devolution of interest pursuant to a will( para 14).The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
17. It is settled that ownership and possession are two entirely different concepts. It necessarily follows that it is not only possible but also permissible to transfer one without the other. In simple words it is permissible to transfer CS No. 137/14 13/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. ownership without transferring possession. Similarly, it is also possible to transfer possession without transferring ownership. It is relevant to note here that in this case neither the ownership had been transferred nor possession of the suit property was ever handed over to the defendant in pursuance of the provisions of the Transfer of Property Act.
18. Section 27 of Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affects the chargeability of duty on that instrument. Section 17 of the Registration Act, 1908 makes deed of conveyance compulsorily registrable. The transfer of an immovable property can only be by a deed of conveyance and in the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transfered. With regard to the legal validity of such documents i.e. agreement to sell, GPA, Will and receipt, the Hon'ble Supreme Court in the case of Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana reported in AIR 2009 SC 3077 has held that such documents cannot create any right in respect of immovable property. The only way a contract of sale can create title to immovable property is by way of a deed of conveyance as defined under Section 54 of the Transfer of Property Act and registered in pursuance of the provisions of Section 17 of The Registration Act, 1908. No such document has been executed in favour of defendant by plaintiff.
19. This Court is conscious of the judgment of the Hon'ble High Court in the case of Sh. Ramesh Chand Vs. Suresh Chand reported in 188 (2012) DLT 538 in which the judgment in the case of Suraj Lamps (supra) was interpreted. In the case CS No. 137/14 14/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. of Ramesh Chand (supra) the Hon'ble High Court was pleased to hold that right to possess immovable property arises not only from a complete ownership right but also by having a better title.
20. As discussed defendant cannot be considered to be the owner. Moreover, the defendant categorically failed to prove the contentions as mentioned in the WS. The defendant failed to prove regarding any transfer of property as claimed in the written statement. Neither Section 53 A of the Transfer of Property Act, 1882 nor Section 202 of the Contract Act, 1872 is applicable for ownership of defendant and the law laid down the Hon'ble Supreme Court in SLP (C) No. 13917 of 2009 titled as Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana & Ors. is squarely applicable in the facts of this case.
21. In the present case, the plaintiff is the owner of the suit property. Examining the case of the plaintiff on the basis of preponderance of probability and in view of the testimony of the witnesses, the plaintiff is the owner of the suit property and is entitled to the possession of the same. As the plaintiff is the owner of the suit property the documents on the basis of which the defendant is claiming the ownership right have no value, the plaintiff is entitled for decree of declaration. Issue No. II and VI are decided in favour of the plaintiff and against the defendant.
Issue No. V
(v) Whether the plaintiff is entitled to a decree of permanent injunction as prayed in the plaint ? ( OPP) CS No. 137/14 15/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
22. As regards the relief of injunction, the injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful. Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied. Sub Section (h) of section 41 mention that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust the injunction cannot be granted. Sub Section (i) mention regarding refusal of injunction when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the court. Section 38 of the Specific Relief Act enables the court to grant a perpetual injunction to prevent the breach of an obligation existing in favour of applicant whether express or implied. Meaningly the question is to be examined as to whether there exists an obligation in favour of the applicant and thereafter if the answer is yes, if the case falls within section 41 of the Act, an injunction cannot be granted. It is also necessary to mention that rights and obligation are corollary to each other and the right places a corresponding duty also for its existence.
23. As held in JT 1994 (6) SC 588 , interest of right not shown to be in existence cannot be protected by injunction. Issuance of order of an injunction is absolutely discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41 (j) of the Specific Relief Act, 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in CS No. 137/14 16/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. existence cannot be protected by injunction.
24. The plaintiff has prayed for restraining the defendant, agents, attorneys etc. from creating any third party interest in the suit property. It is the case of the defendant that she has purchased the suit property. As mentioned, the defendant failed to prove the ownership. The defendant therefore cannot have valid title in respect of the suit property on the basis of said documents. As the defendant has no right, title or interest in the suit property, the plaintiff is entitled for grant of injunction as prayed in the suit. Issue No. 5 is decided in favour of the plaintiff and against the defendant. The defendant, agents, assigns, associates are restrained from creating any third party interest or parting with possession of the suit property. Issue No. V is decided in favour of the plaintiff and against the defendants. Issue No. VII
(vii) Whether the plaintiff is entitled to a decree of mesne profits as prayed in the plaint ? OPP
25. The onus to prove this issue is upon the plaintiff. It is observed that the plaintiff has neither pleaded nor deposed anything regarding his relief as prayed in the suit. In fact no evidence was led by the plaintiff in this respect and nothing was deposed at all. The plaintiff categorically failed to prove any entitlement of mesne profits as prayed in the suit. This issue is decided against the plaintiff and in favour of the defendant.
Relief
26. In view of the aforesaid discussions and findings, this court is of the CS No. 137/14 17/18 Ashok Kumar Vs. Suman Lata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. considered opinion that plaintiff has proved his case and therefore, he is entitled for the following relief:
(i) Decree of declaration is passed and the plaintiff is declared as the owner of the suit property and the sale documents executed by Sh. Jai Bhagwan in favour of Smt. Surujmukhi are declared null and void.
(ii) The suit of the plaintiff is decreed for possession regarding suit property bearing Plot No. U51/B situated at Village Karawal Nagar, Delhi measuring 50 sq. yards out of khasra No. 18, kila No. 8 as shown red colour in the site plan.
(iii) Decree of permanent injunction is passed in favour of the plaintiff and against the defendant and the defendant, attorneys, representative, agents etc. are restrained from selling, transferring, alienating or creating third party interest in the suit property measuring 50 sq. yards out of khasra No. 18, kila No. 8, plot No. U51/B situated at Village Karawal Nagar, Delhi as shown red colour in the site plan except without due process of law.
(iv) The plaintiff is also entitled for cost of the suit.
27. Decree sheet be drawn accordingly.
28. File be consigned to record room after necessary compliance.
Announced in open Court
on this 19th day of January, 2015 G. N. Pandey
Addl. District Judge02 (NE)
Karkardooma Courts, Delhi.
CS No. 137/14 18/18
Ashok Kumar Vs. Suman Lata