1 In the Court of Ms. [ENTITY], Civil Judge-05, Central District, Tis Hazari Court, Delhi. [PRECEDENT] Unique ID No. 02401C0016561993 1.
Sh. [ENTITY] S/o Sh. Hardhan Singh
2. Sh. [ENTITY], S/o Sh. Hardhan Singh.
3. Sh. [ENTITY], S/o Sh. Hardhan Singh All Residents of House no. 159, Village Rithala, Delhi Plaintiffs Versus
1. Sh. [ENTITY] S/o Sh. Shiv Dhan Singh Res of village Rithala, Delhi
2. Sh. [ENTITY], S/o Sh. [ENTITY] Ranna Res of Village Shahbad Daulatpur Delhi.
[PRECEDENT] [ENTITY] Vs. [ENTITY] 3. Sh. [ENTITY]. 4. Sh. [ENTITY] Both sons of Sh. Prakash Pahwa Both residents of 1/21, old Rajinder Nagar, New Delhi. Defendants Date of Institution: 05.06.1993 Date of Final Decision: 31.03.2016
1. Plaintiffs have filed a suit for mandatory injunction so as to direct the Defendants to restore and deliver back the possession of suit premises, situated in extended Lal Dora Abadi of Village, Delhi, Rithala to the Plaintiffs. Further, the Plaintiffs seek the relief of permanent injunction restraining the Defendants from using the suit premises and from taking out the goods lying in the suit premises. Moreover, the Plaintiffs seek a relief of permanent injunction restraining the Defendants from selling, transferring, alienating or disposing of the suit property. Lastly, the Plaintiffs have asked for the relief of permanent injunction restraining the Defendants from carrying out any type of construction in the suit property.
Plaintiffs' case as per the plaint:
2. The Plaintiffs in their plaint have averred that after the death of Sh. [ENTITY], the father of the Plaintiffs, namely, Sh. [ENTITY] along with his real brothers, namely Sh. [ENTITY], Sh. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY] inherited in equal shares the property, namely Khasra No. 132, 1109 and 1110 in the Lal dora extended abadi of Village Rithala, Delhi.
[PRECEDENT] [ENTITY] Vs. [ENTITY]
3. Plaintiffs had filed their suit on 4th June 1993 but during the pendency of the suit i.e. On 14.07.1993, the Plaintiffs were allegedly dispossessed by the Defendants and an amended plaint was filed. The Plaintiffs have averred that the above mentioned properties inherited were orally partitioned between the five brothers, sons of Sh. [ENTITY] and each of them became the owner of 1/5th share of the properties. Further, it is averred that since then parties, Lrs of [ENTITY] have been in occupation of their respective portions. Moreover, the case of the Plaintiffs is that on 01.09.1992, after death of Sh. [ENTITY] i.e. Father of the Plaintiffs, the Plaintiffs became owner in possession of the said 1/5th share in the properties and were in lawful occupation and possession of the same. The Plaintiffs made reference to the site plan on record filed by them to substantiate the statement.
5. Further, as per the plaint, prior to the death of Sh. [ENTITY], Plaintiffs no. 1 was carrying on the business of manufacturing card board boxes in front of the portion of the properties, while the rear portion shown in red colour in the site plan, measuring approximately 750 sq yd was being used for godown purposes.
6. Moreover, the Plaintiffs averred that on 20.05.1993, Defendant no. 1 along with some goons came into the property with malafide intention to dispossess the Plaintiffs and the same was repeated on 29.05.1993 and 03.06.1993. Further, the Plaintiffs averred that on 14.07.1993, Defendant no. 2, Defendant no. 3 and Defendant no. 4 along with some goons came to the suit premises and claimed to be the owner of the suit premises having purchased the same from Defendant no. 1 and asked the Plaintiffs to vacate the suit premises. Moreover, the Plaintiffs averred that Defendant no. 2, 3 and 4 illegally trespassed into the suit premises, despite the status qua order passed by this Hon'ble Court. It is also averred that the Defendants started [PRECEDENT] [ENTITY] Vs. [ENTITY] to construct large scale unauthorized construction in the open space, as pointed out in the red color in the site plan.
7. Thus, the Plaintiffs have filed the present suit for the reliefs aforementioned.
Defendant no. 1's case as per his written statement:
8. Succinctly put, Defendant no. 1 in his written statement took the preliminary objections to the suit for being bad for mis-joinder of parties. Further, Defendant no. 1 objected to the plaint on the ground that the Plaintiffs have not come to the court with clean hands and have suppressed material information. Moreover, Defendant no. 1 alleged that no cause of action has arisen in favour of the Plaintiffs and against the Defendants and also alleged that the proper court fees as per the market value of the suit property has not been paid.
9. Further, on merits, succinctly put, Defendant no. 1 averred that the father of the Plaintiffs along with father of the Defendant no. 1 sold their share in the property on 24.03.1988 to Sh. [ENTITY] and that Defendant no. 1 has no relation with the property anymore. Further, Defendant no. 1 denied that he ever visited the Plaintiffs on 20.05.1995 or any other date with intention to forcibly dispossess the Plaintiffs.
Defendant no. 3 and 4's case as per their written statement:
10. In the written statement filed by Defendant no. 3 and 4, they averred several preliminary objections. The first objection taken by Defendant no. 3 and 4 was that the suit is barred under [SECTION] of [ACT] ( In short ' DLR') as the suit property is governed by the provisions of DLR. Further, Defendant no. 3 and 4 alleged that the Plaintiffs has filed the present suit for permanent and [PRECEDENT] [ENTITY] Vs. [ENTITY] mandatory injunction, though the suit is for partition or declaration and thus, the suit is barred under [SECTION] of [ACT] (in short ' SRA') as efficacious remedy has not been asked by the Plaintiffs. Moreover, Defendant no. 3 and 4 alleged that the Plaintiffs do not have any locus standi to file the present suit as the Plaintiffs were neither the owners nor in possession of the suit property and thus, there was no cause of action in their favour. Further, Defendant no. 3 and 4 alleged that the Plaintiffs have suppressed material facts and have not come to the court with clean hands. Also, Defendant no. 3 and 4 alleged that the suit is bad for mis-joinder and non-joinder of the necessary parties. Defendant no. 3 and 4 also alleged that the Plaintiffs have not paid court fees as per as market value of the suit property.
11. With respect to the merits, Defendant no. 3 and 4 averred that Defendant no.1 is a man of Plaintiffs and he does not have any connection with the property whatsoever. Further, it was averred that they purchased the suit property from Defendant no. 2, who was the attorney of his father, namely Sh. [ENTITY] and who had been recorded as owner/ Bhumidar of the suit property in the revenue records.
Further, Defendant no. 3 and 4 averred that no objections certificate were obtained from the competent authority i.e. ADM, under [ACT] prior to execution of the sale deed. Further, they averred that the Defendants got the sale deed registered from office of Sub-Registrar, Delhi. They also averred that the Defendants were delivered with physical and vacant possession of the suit property on 6.04.1993 and since then, they are in physical possession of the suit property. Further, they averred that the Plaintiffs have no connection with the suit property.
12. They denied the partition between the five sons of Sh. [ENTITY] and denied that the Plaintiffs were ever in possession or owners of the suit property. They denied [PRECEDENT] [ENTITY] Vs. [ENTITY] the site plan filed by the Plaintiffs. They also denied that the Plaintiffs were doing business in the suit property. They averred that the allegation regarding the Defendants dispossessing the Plaintiffs were cooked up. Moreover, they averred that the Defendant no. 3 and 4 were in possession of the suit property, even on 14.07.1993, and the Plaintiffs were never in possession and thus, there is no question of the Plaintiffs being dispossessed. Further, they averred that the Plaintiffs and Defendant no. 1 have connived with each other with sole object of extorting money illegally from the Defendants. It is also the case of the Defendant no. 3 and 4 that the Plaintiffs no. 1 had given an undertaking on stamp paper that neither he nor his legal heirs shall claim any thing/right in the suit property and confirmed the sale deed executed in favour of the Defendants. Thus, the Defendant no. 3 and 4 averred that the Plaintiffs are estopped from saying that they have a right in the suit property. Thus, the Defendants no. 3 and 4 stated that the plaint is based on false facts and should be dismissed with cost.
Replication filed by Plaintiffsto written statements of Defendant no. 1, 3 and 4:
13. In the replication filed by the Plaintiffs, they stated that Sh. [ENTITY], [ENTITY], [ENTITY] and Sh. [ENTITY], S/o [ENTITY] sold their share of land, after the partition in favour of Sh.[ENTITY] , s/o Sh. [ENTITY], i.e. Defendant no.2 . The land sold by them measured 4 bighas 1/1/2 biswas out of Khasra No. 144 (0-12), 1109 (1-10), 1110(6-3) and 132(7-8). The Plaintiffs averred that the sale of land was made in favour of Defendant no. 2 on the basis of agreement to sell dated 24.03.1998. Further, they averred that Sh. [ENTITY], as attorney of his father, sold land measuring 2 bighas and 1/1/2 biswas out of Khasra No. 1110, Village Rithala, Delhi in favour of Sh. [ENTITY] vide sale deed dated 30.10.1989. Further, it was averred that Sh. [ENTITY] again executed another general power of attorney in favour of his son, Sh. [ENTITY] [PRECEDENT] [ENTITY] Vs. [ENTITY] Rana and he sold the property measuring 375 Sq Yds out of Khasra No. 1110, Village Rithala, Delhi to Defendant no. 3 vide sale deed dated 06.04.1993. It is also averred that similarly, the Defendant no. 2 sold land measuring 375 Sq Yds out of Khasra No. 1110, village Rithala, Delhi in favour of Defendant no. 4 vide sale deed dated 06.04.1993. Thus, they averred that the land on which Defendant no.3 and 4 are claiming ownership has devolved upon them through the land which originally belonged to Sh. [ENTITY], [ENTITY], [ENTITY] and [ENTITY] and Sh. [ENTITY]. Further, it is averred that father of the Plaintiffs were never the party to the sale which took place on 24.03.1988 and even thereafter, thus the 1/5th share of Late Sh. [ENTITY] remains intact and in actual physical possession of the Plaintiffs. Thus, they averred that both the sale deeds dated 06.04.1993 and 24.03.1988 do not pertain to land of the Plaintiffs but Defendant no. 3 and 4 have illegally dispossessed the Plaintiffs from their land, claiming the sale deed pertains to the land of Plaintiffs.
14. Further, the Plaintiffs have averred that they took loan of Rs. 3,00,000/- from Defendant no. 2 in the month of March, 1993 and on asking of Defendant no. 2, had signed various blank and printed papers and handed over them to the Defendant no.
2. Further, it is averred that these paper were signed as the Plaintiffs were in dire need of financial assistance. It is also averred that the relations between the Plaintiffs and Defendant no. 2 became strained and Defendant no. 2 connived with the Defendant no. 3 and 4 and handed over the papers to them. Moreover, the Plaintiffs averred that one of the blank stamp papers, which was signed by the Plaintiffs no. 1 has been illegally converted into and undertaking by the Defendant no. 3 and 4. Further, it is averred that Defendant no. 2 had also taken two photographs of the Plaintiffs no. 1, at the time of advancement of loan. It is also averred that the photograph has been pasted on the alleged undertaking which is attested on 24.07.1994. It is also averred that the undertaking is a false and fabricated document. It is also averred that it does [PRECEDENT] [ENTITY] Vs. [ENTITY] not sound plausible that on one hand, Plaintiffs are vigorously contesting their case and lodging complaints to the authorities against the Defendants in the month of July, 1993, whereas, on the other hand, Plaintiffs would execute the alleged undertaking, confirming the sale deed, which has been bone of contention between the parties in the present suit and legality of which in under serious cloud. It is averred that the undertaking cannot be relied upon. It is also averred that even otherwise, the alleged undertaking was executed only by the Plaintiffs no. 1 and is not binding on the Plaintiffs no. 2 and 3.
15. Issues were framed on 26.11.1998. The following issues were framed as given below:
1) Whether the suit is barred under [SECTION] of [ACT]? OPD 3 & 4
2) Whether the suit is not maintainable as barred under [SECTION] of [ACT]? OPD 3 & 4
3) Whether the suit is bad for misjoinder and non-joinder of necessary parties? OPD
4) Whether the suit is properly valued for the purpose of Court fees and jurisdiction? OPP
5) Whether the Plaintiffs are the owner in possession of suit premises and thus have locus standi to file the suit? OPP
6) Whether the Plaintiffs are entitled for relief of mandatory injunction? OPP
7) Whether the Plaintiffs are entitled for relief of permanent injunction as prayed for? OPP
8) Relief.
Evidence on behalf of Plaintiffss:
16. PW-1 Sh. [ENTITY], the Plaintiffs himself stepped into the witness box and was examined-in-chief by way of affidavit Ex.PW1/A and relied on the following [PRECEDENT] [ENTITY] Vs. [ENTITY] documents:
Sr. No Exhibit/Mark Nature of Documents
1. Ex. PW 1/1 Certified copy of the Khautoni
2. Ex. PW 1/2 Site Plan by the Plaintiffs
3. Mark A Complaint to Commissioner of Police, DCP (North) dated 14.07.1993
4. Mark B Copy of Complaint lodged with Lt. Governor dated 06.07.1993
5. Mark C Copy of the complaint lodged with Dy.
Commissioner(Vig) dated 14.07.1993
6. Mark D Postal receipts (Colly)
7. Ex. PW-1/7 Copies of the Agreement and General Power of and Ex. PW Attorney both dated 23.07.1979 executed and 1/8 thumb mark by Sh. [ENTITY].
Additionally, two documents, Ex PW-1/DX-1 and Ex PW-1/DX-2 were put to PW-1 which were allegedly the undertakings.
PW-1, Sh. [ENTITY], was duly cross examined by Defence Counsel.
17. The Plaintiffs further brought PW-2, [ENTITY], Record Room Kanjhawala, Distt. North West, who placed [ENTITY] of the suit land in question on record which is Ex. PW-2/1 (OSR).The court gave the Ld. Counsel for the Defendant the opportunity to cross-examine the witness but he did not cross examine him.
18. Further, Plaintiffs brought PW-3, Sh. [ENTITY], Sub Division, Rohini, District North West, Kanjhawala, Delhi whose PW number should have been PW-3 but may be due to an oversight, it is mentioned as PW-2. He Placed PW-3/1 i.e. report prepared by Sh. [ENTITY], Surveyor on record regarding demarcation of the deputed property. Additionally, Ex PW-3/2, copy of relevant extract of [ENTITY] was also [PRECEDENT] [ENTITY] Vs. [ENTITY] placed on record. He was duly cross examined by Defence Counsel.
Evidence on behalf of Defendants:
19. The Defendants in support of their case have filed affidavit in evidence of Sh. [ENTITY], who is Defendant no.3, which is Ex. D3W1/A and placed on record following document:
Sr. No. Exhibits Nature of Documents
1. Ex. D3W-1/1( which was earlier Certified copy of the sale marked as Mark A) deed in his name D3W1, Sh. [ENTITY], was duly cross examined by Plaintiffs's counsel.
20. The Defendant in support of his case has filed affidavit in evidence of Sh. [ENTITY], Defendant No.4, which is Ex. D4W1/A and placed on record following document:
Sr. No. Exhibits Nature of Documents
1. Ex. D4W-1/1 and Ex. D4W- Certified copies of the sale deeds in his 1/2 and his brother's name.
D4W1, Sh. [ENTITY], was duly cross examined by Plaintiffs's counsel.
21. Further, Sh. [ENTITY], D3-4/W2, Record keeper, had brought summoned record i.e. sale deeds bearing registration number 3141, book No. 1, Volume No. 7347, page No. 161 to 164, registered on 10.05.1993 executed by Sh. [ENTITY] in favour of Sh. [ENTITY] and another sale deed bearing [PRECEDENT] [ENTITY] Vs. [ENTITY] registration number 3142, book No. 1, Volume No. 7347, page No. 165 to 168, registered on 10.05.1993 executed by Sh. [ENTITY] in favour of Sh. [ENTITY] D3-4/W2, was duly cross examined by Plaintiffs's counsel.
22. It is pertinent to note that Defendant no2 was proceeded ex-parte and the suit against Defendant no.1 stood abated. Thus, only Defendant no.3 and 4 are the contesting Defendants.
23. I have gone through the record minutely and based on the evidence and arguments held before this court, the issue wise finding in this matter is as under:
24. ISSUE NO.1 Whether the suit is barred under [SECTION] of [ACT]? OPD 3 & 4 The onus of the aforesaid issue was put on the Defendants no.3 and 4 but during the course of the final arguments and in their written submissions, they conceded that the suit is not barred under [SECTION] of [ACT], as the area in which the suit property is situated is built up area and no agriculture activities are going on in that area. In [PRECEDENT] the Hon'ble Delhi High Court has held that any land before it can be termed "land" for the purpose of the [ACT] be held or occupied for purposes connected with agriculture, horticulture or animal husbandry etc. and if it is not used for the said purposes, it ceased to be a land for the purposes of the Act and the provisions thereof will no longer apply and the remedy of the aggrieved party, if any, would be under the general law of the land. Similar view was taken by the Hon'ble Delhi High Court in [PRECEDENT]. Since admittedly, there are no activities of agriculture, horticulture or animal husbandry etc going on in the suit property, thus the suit premises do not [PRECEDENT] [ENTITY] Vs. [ENTITY] get covered by the definition of "land", as per DLR and thus, suit is not barred by [SECTION] of [ACT].
Thus, this issue is decided in the favour of the Plaintiffs and against the Defendants. It is ordered accordingly.
25. For the sake of convenience, Issue No. 3 is taken up before Issue no.2, ISSUE NO.3 Whether the suit is bad for misjoinder and non-joinder of necessary parties? OPD The onus of the aforesaid issue was put on the Defendants, as it was averred that the suit is bad for misjoinder and non-joinder of necessary parties. It was argued by the Defendants no.3 and 4 that by impleading Defendant no.1, who has no concern with the suit property and who colluded with the Plaintiffs to obtain status quo order, the suit became bad for misjoinder. Moreover, it was argued that the Plaintiffs have not joined the co-sharers of the land with whom oral partition took place, between the father of the Plaintiffs and who had sold the land to Sh. [ENTITY] from whom Defendant no.3 and 4 have purchased it vide registered sale deeds and thus the present suit is bad for non-joinder of necessary party. It has been decided in the judgment of [PRECEDENT] that there are twin tests to determine whether the party is necessary or not. The tests are:
i) There must be right to some relief against such party and
ii) It should not be possible to pass effective decree in absence of such party.
In light of the above stated settled law, as far as the first argument is concerned regarding misjoinder of Defendant no.1 to the present suit, the same is not sustainable as the Plaintiffs had averred that the Defendant no.2, 3 and 4 came to the suit premises and claimed themselves to be the owner of the suit premises, having [PRECEDENT] [ENTITY] Vs. [ENTITY] purchased the same from Defendant no.1 and illegally dispossessed the Plaintiffs, thus Defendant no.1 being impleaded as a party in the suit, dos not make the suit suffer from misjoinder of parties. Secondly, regarding the suit being bad for non- joinder of other co-owners, there is no right to relief claimed by the Plaintiffs against the other co-owners in the present suit.
In light of the above, this issue is decided against the Defendants and in favour of the Plaintiffs. It is ordered accordingly.
26. ISSUE NO.2 Whether the suit is not maintainable as barred under [SECTION] of [ACT]? OPD 3 & 4 Ld. Counsel for the Defendant argued that the present suit is barred under [SECTION] of the [ACT] as the Plaintiffs could have obtained equally efficacious remedies by filing suit for possession, declaration and cancellation of registered sale deeds in favour of Defendant no.3 and 4. The Hon'ble Supreme Court of India in [PRECEDENT] wherein the Supreme Court had examined the nature of the relief that the Plaintiffs must plead and seek in different factual backgrounds, in a suit relating to an immovable property. Paragraphs 11 to 14 of that decision, read as follows:
"11. 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, are well settled. We may refer to them briefly.
11.1) Where a Plaintiffs is in lawful or peaceful possession of a property and such [PRECEDENT] [ENTITY] Vs. [ENTITY] possession is interfered or threatened by the Defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the Plaintiffs is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the Plaintiffs 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 Plaintiffs will have to sue for declaration of title and the consequential relief of injunction. Where the title of Plaintiffs is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the Plaintiffs will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the Defendant or challenge to Plaintiffs's title raises a cloud on the title of Plaintiffs to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the Plaintiffs has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the Plaintiffs's title, it does not amount to raising a cloud over the title of the Plaintiffs and it will not be necessary [PRECEDENT] [ENTITY] Vs. [ENTITY] for the Plaintiffs to sue for declaration and a suit for injunction may be sufficient. Where the Plaintiffs, believing that Defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the Defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over Plaintiffs's title, then there is a need for the Plaintiffs, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the Defendant from interfering with Plaintiffs's possession, the Plaintiffs will have to establish that as on the date of the suit he was in lawful possession of the suit property and Defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The Plaintiffs may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a [PRECEDENT] [ENTITY] Vs. [ENTITY] mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the Plaintiffs to the remedy of a full- fledged suit for declaration and consequential reliefs."
27. Another decision is of [PRECEDENT] which would amply make the point clear that a Plaintiffs by filing a mere injunction Suit cannot call upon the Court to conduct a broad based roving inquiry in respect of the title of the parties over the suit property and the Court also would not be justified in doing so. Once the Court comes to the conclusion that there is some serious title dispute or cloud relating to the title over the suit property, then the parties should be driven to the extent of filing a comprehensive Suit only.
Further, [SECTION] of [ACT], lays down the condition when an injunction can be refused. The relevant provision of this Section for the purpose of the present case is [SECTION] which reads as under;
"[SECTION]. Injunction when refused. An injunction cannot be granted- (h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust "
28. In the present case, the Plaintiffs has filed the suit for relief of injunction to restore the possession of the suit premises and to restrain the Defendants from carrying out any type of construction in the suit premises and to restrain them from [PRECEDENT] [ENTITY] Vs. [ENTITY] creating any third party interest. Further, an injunction to restrain them from using the property. But it neither incorporates the relief of declaration, declaring the Plaintiffs as owners of the suit property nor does it contain the relief of recovery of possession. Defendant no.3 and Defendant no.4 have in their written statement averred that they purchased the suit property from Defendant no.2, attorney of his father Sh. [ENTITY] and they even got the sale deed registered from the office of sub-registrar, Delhi and were delivered vacant possession of the same on 06.04.1993. Further, Defendant no.3 and Defendant no.4 have also averred that the Plaintiffs have no connection with the suit property nor were they in possession of the same, at the filing of the suit.
29. It is observed by the court that the Plaintiffs had moved an application for amendment of the plaint under [SECTION] [ACT] on 01.09.2015 but the application was dismissed, on the ground that after 23 years, the application has been moved though the Plaintiffs were well aware of the defence of Defendant no.3 and 4, who had challenged the ownership of the Plaintiffs in the suit property and it could not be said that the Plaintiffs acted diligently.
30. Admittedly by the Plaintiffs, Defendant no.3 and Defendant no.4 are in possession and moreover, a cloud/dispute has been raised over the Plaintiffs's title by Defendant no.3 and Defendant no.4. Therefore, it is clear that proper remedy for Plaintiffs was to file a comprehensive suit for possession, declaration of title along with injunction. The present suit simpliciter for injunction, is barred under [SECTION] of the [ACT].
Thus, this issue is decided in the favour of the Defendants and against the Plaintiffs. It is ordered accordingly.
[PRECEDENT] [ENTITY] Vs. [ENTITY] 31. ISSUE NO.4
Whether the suit is properly valued for the purpose of Court fees and Jurisdiction? OPP On the issue of court fees, since a comprehensive suit should have been filed by the Plaintiffs for declaration, possession along with injunction, thus, the Plaintiffs were legally bound to pay court fees based on the market value of the suit property.
In light of the above, this issue is decided against the Plaintiffs and in favour of the Defendants. It is ordered accordingly.
32. ISSUE NO.5 Whether the Plaintiffs are the owner in possession of suit premises and thus have locus standi to file the suit? OPP Since the Plaintiffs have not sought the relief of declaration qua the suit property, the court need not go into the question of ownership and this court does not deem it fit to give a finding to this issue.
33. For the sake of convenience, issue no.6 and 7 are taken up together:
Whether the Plaintiffs are entitled for relief of mandatory injunction? OPP Whether the Plaintiffs are entitled for relief of permanent injunction as prayed for? OPP The onus to prove these two issues was put on the Plaintiffs. The Plaintiffs had [PRECEDENT] [ENTITY] Vs. [ENTITY] the onus to prove his previous possession for the relief of injunctions to be granted. The Plaintiffs have not placed a single document on record to show their possession of the property at any stage of time. There is no cogent evidence produced by the Plaintiffs in this regard. Further no police complaint was proved by the Plaintiffs to show that they had been dispossessed from the suit property on 14.07.1993. There is no other documentary evidence proved to show that Plaintiffs were illegally dispossessed from the suit property on 14.07.1993. No other independent witness was examined by the Plaintiffs in the present suit to establish their previous possession in the suit property .Apart from a mere self serving ipse dixit of the Plaintiffs that they were dispossessed by the Defendants from the suit property on 14.07.1993, no other evidence has been led by the Plaintiffs. The Plaintiffs by relying on Khatoni ExPW1/1 submitted that the Khatoni shows that the Plaintiffs are owners of 1/5 th share falling in Khasras no.1110, 132 and 1109 but this argument does not help the Plaintiffs, as the fact that they were in possession of the suit premises does not stand proved from the Khatoni. Moreover, PW-1 in his cross-examination deposed that he has not filed on record any sales tax registration to show that he was running the business of manufacturing of cardboard boxes as in his affidavit in lieu of examination in chief.
I am of the opinion that the Plaintiffs have failed to prove that they were in possession of the suit property and were wrongly dispossessed by the Defendants.
In light of the above, this issue is decided against the Plaintiffs and in favour of the Defendants. It is ordered accordingly.
[PRECEDENT] [ENTITY] Vs. [ENTITY] Relief
33.1. In view of the facts and circumstances, the Plaintiffs is not entitled any relief in this matter.
Suit is dismissed.
Let a decree sheet be prepared.
No order as to costs.
All pending applications, if any, are disposed off as not pressed. Announced in the Open Court on 31th of March 2016 (Ms. [ENTITY]) Civil Judge-05, Central District Tis Hazari Courts,Delhi Present judgment is consisted of 20 pages and each page is signed by me.
[PRECEDENT] [ENTITY] Vs. [ENTITY] 31.03.2016 Present: None.
Vide my separate judgment of even date, suit of the Plaintiffs is dismissed. No order as to cost. Decree-sheet be prepared accordingly.
File be consigned to record room after due compliance.
( [ENTITY] ) Civil Judge-05, Central District Tis Hazari Courts, Delhi 31.03.2016