[PRECEDENT] [ENTITY] v. Sh. [ENTITY] Suit no. 82743/16 IN THE COURT OF MS. [ENTITY], CIVIL JUDGE01 (SOUTH) SAKET COURT, NEW DELHI In the matter of: Suit no. 82743/16 CNR No.DLST030001342013 [PRECEDENT] [ENTITY] W/o Lt. Sh. [ENTITY] R/o H. No. 364365, Gali No. 25, Chhatterpur, Pahari New Delhi110074. Plaintiff Versus (1) Sh. [ENTITY] S/o Sh. [ENTITY] R/o FD1, Sector8 Shopping Centre, [ENTITY] New Delhi110022 (2) Sh. [ENTITY] S/o Sh. [ENTITY] R/o FD1, Sector8 Shopping Centre, [ENTITY] New Delhi110022 (3) Sh. [ENTITY] S/o Sh. [ENTITY] R/o FD1, Sector8 Shopping Centre, [ENTITY] New Delhi110022 Defendants Date of Institution : 20.05.2013 Date of Pronouncement : 10.01.2019 Decision : Dismissed SUIT FOR PERMANENT INJUNCTION Present: None. Page no. 1 of 14 [PRECEDENT] [ENTITY] v. Sh. [ENTITY] Suit no. 82743/16 JUDGMENT:
1. This suit for permanent injunction has been filed by the plaintiff against the defendants seeking to restrain the defendants from dispossessing the plaintiff from the property bearing House No. 364365, Gali No. 25, Chatterpur Pahari, New Delhi110074 as shown in the site plan (hereinafter referred as 'Suit Property'); not to interfere in her peaceful possession of the Suit Property; and not to sell or create third party interest in the Suit Property.
Averments in the plaint:
2. The case of the plaintiff is that plaintiff got married about 16 years ago and there was no issue born out of this wedlock. Husband of the plaintiff was already married before this marriage, and had three sons i.e. defendants and one daughter namely [ENTITY] from his previous marriage. Husband of the plaintiff purchased lands in Vasant Vihar, [ENTITY], New Delhi and Mumbai and handed over the same to the defendants. Defendants no. 1 to 3 had sold out their properties of Vasant Vihar and Mumbai, and now defendants are residing in [ENTITY], New Delhi and running their business. Husband of the plaintiff purchased a property measuring 200 sq. yards at Chhattarpur Pahari, New Delhi which was constructed by the plaintiff as well as her husband to let out the property for their livelihood. Due to paucity of funds, husband of plaintiff had sold out upper ground flats in the property to Ms. [ENTITY] w/o Sh. [ENTITY] and other flats to meet out the funds of his illness. Husband of the plaintiff expired on 15.03.2013. After the death of husband of plaintiff, defendants visited the residence of the plaintiff and abused and manhandled her.
Page no. 2 of 14 [PRECEDENT] [ENTITY] v. Sh. [ENTITY] Plaintiff called the police but defendants left the spot before the police reached. On 18.04.2013, plaintiff made a complaint to L. G. Commissioner of Police, DPC, Chairman etc., but till date, the police as well as higher authorities have not taken any action against the defendants. Suit Property is only livelihood of the plaintiff. Defendants have prepared forged documents of the Suit Property and want to dispossess the plaintiff from the Suit Property. Having left with no other option, this suit has been filed by the plaintiff.
Written statement:
3. By virtue of the written statement, plaint has been opposed and its contents have been denied. It is submitted that plaintiff was a maid servant of the father of the defendants, and after the death of mother of the defendants, plaintiff started living with their father to take care of him. Plaintiff entered into live in relationship with their father, and they are not aware whether marriage of the plaintiff was solemnized with their father. Being head of the family, father of the defendants managed the affairs of the entire property. Both the houses were constructed with the help of defendants. Defendant no. 1 purchased a DDA flat in Vasant Gaon, Vasant Vihar, New Delhi which he sold and purchased property no. 364365. Defendant no. 3 purchased a house in JVPT Scheme, Juhu, Mumbai and sold it to repay the losses of his father which was incurred in the production of TV serial '[ENTITY]'. In 1991, defendant no. 1 and his father purchased property no. 364365 after selling the DDA house in Vasant Gaon of defendant no. 1. Suit Property was constructed in the year 1996 which is prior to the plaintiff entering into the picture. Plaintiff has no Page no. 3 of 14 [PRECEDENT] [ENTITY] v. Sh. [ENTITY] proof of ownership over the Suit Property. Plaintiff alone is occupying the first floor of House No. 364, and has rented out other two floors without the consent of the defendants. Plaintiff can claim only 1/5th share in property no. 364, if she is a legally wedded wife of Lt. Shri [ENTITY]. Defendant no. 1 has been living on third floor of House No. 365, and other two defendants came to meet the plaintiff and asked her not to sell or let out the floors of the Suit Property without their consent as they have equal share in the Suit Property. The suit is meritless and deserves to be dismissed with costs.
Replication:
4. By virtue of the replication, the contents of the plaint have been reiterated and the contents of the written statement have been denied. Issues:
5. Vide order dated 02.12.2014, following issues were framed in this matter:
Issue no. 1 Whether the plaintiff is entitled to a decree of permanent injunction as prayed in clause A of the prayer? OPP Issue no. 2 Relief, if any.
Evidence:
6. In order to prove her case, plaintiff examined herself as PW
1. She tendered her evidence by way of affidavit Ex. PW1/A and relied upon the following documents:
(i) Ex. PW1/1 i.e. site plan of the suit property;
(ii) Ex. PW1/2 i.e. copy of death certificate of plaintiff's husband;
(iii) Ex. PW1/3 i.e. copy of newspaper clip of Navbharat Times regarding Page no. 4 of 14 [PRECEDENT] [ENTITY] v. Sh. [ENTITY] Rasam Pagdi;
(iv) Ex. PW1/4 i.e. copy of passbook of post office;
(v) Ex. PW1/5 i.e. copy of ration card of plaintiff;
(vi) Ex. PW1/6 i.e. copy of Dena Bank's passbook;
(vii) Ex. PW1/7 i.e. copy of voter ID card;
(viii) Ex. PW1/8 i.e. copy of Adhar Card's acknowledgment slip/ receipt;
(ix) Ex. PW1/9 i.e. electricity bill dated 12.02.2013;
(x) Ex. PW1/10 i.e. electricity bill dated 12.02.2013;
(xi) Ex. PW1/11 (colly) i.e. copy of agreement to sell, GPA, affidavits, Wills, receipt etc. in respect of Plot No. 364;
(xii) Ex. PW1/12 (colly) i.e. copy of GPA sales document, possession letter in respect of plot no. 364365; and
(xiii) Ex. PW1/13 (colly) i.e. complaint dated 18.04.2013 vide DD no.
7. Despite opportunity, PW1 was not crossexamined by the defendant. Thereafter, vide separate statement, plaintiff's evidence was closed.
8. Despite several opportunities, evidence was not led on behalf of the defendant. Vide order dated 15.12.2018, opportunity to lead defence evidence was closed.
Findings:
9. Final arguments on behalf of the plaintiff were heard. Despite opportunity, defendant failed to address final arguments, and vide order dated 17.12.2018, opportunity to present final arguments for the defendants had been closed. Ld. Counsel for plaintiff presented his Page no. 5 of 14 [PRECEDENT] [ENTITY] v. Sh. [ENTITY] arguments in accordance with his plaint. I have carefully perused the entire case record including the pleadings and evidence. I have also gone through the prevailing law in this regard and have heard the submissions of the learned counsel for the plaintiff. My issueswise findings are as under:
Issue no. 1:
Whether the plaintiff is entitled to a decree of permanent injunction as prayed in clause A of the prayer?OPP
10. The onus of proof of this issue is on the plaintiff. It has been held in the case of [PRECEDENT] that:
"Even though defendant is exparte, but same does not dilute the responsibility of the plaintiff to prove his case. On the contrary, on the defendant being exparte, the onus is more on the plaintiff required to prove his case."
11. It is an elementary rule of civil litigation in this country that a plaintiff must stand or fall on the strength of his own case. 2 Therefore, in the present case as well, the plaintiff has to prove his case and stand on his own legs. He cannot be entitled to a decree merely because the defendant failed to crossexamine him or lead his own evidence.
12. The claim of the plaintiff is based on her ownership and possession of the Suit Property. The plaintiff claims that she is the second wife of Lt. Sh. [ENTITY] who had executed property documents in her favour during her lifetime which conferred ownership rights upon her. Besides, she being the wife of deceased Lt. Sh. [ENTITY], also has ownership rights in the Suit Property. For this purpose, PW1 has relied on Ex. PW1/11 (colly) and Ex. PW1/12 (colly), which are copies of 1 Judgment dated 13.01.2009 of the Hon'ble High Court of Delhi in [CASE NUMBER]. 2 [PRECEDENT]; [PRECEDENT].
Page no. 6 of 14 [PRECEDENT] [ENTITY] v. Sh. [ENTITY] agreement to sell, GPA, affidavit, Will, receipt, etc., in respect of property no. 364 and copy of GPA, sale documents and possession letter in respect of property no. 364 and 365 respectively.
13. First and foremost, these are not title documents and by themselves, do not confer ownership upon the plaintiff or for that matter, on the executants of these documents in favour of the plaintiff. As per the judgment of [PRECEDENT]:
"We therefore reiterate that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance. Transaction of the nature of 'GPA sales' or 'SA/GPA/Will' transfers do not convey title and do not amount to transfer, nor can they be recognized as valid mode of transfer of immovable property. The court will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title except to the limited extent of [SECTION] of [ACT]. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales (emphasis supplied)".
14. The only documents in respect of plot no. 364 in favour of Sh. [ENTITY] is one agreement to sell dated 04.08.1993 and one receipt both of which, are part of Ex. PW1/11 (colly). The remaining documents 3 [PRECEDENT].
Page no. 7 of 14 [PRECEDENT] [ENTITY] v. Sh. [ENTITY] are the property chain documents in favour of the previous owner in relation to plot no. 364. Further, as part of Ex. PW1/12 (colly), PW1 has exhibited power of attorney and possession letter dated 23.10.2012 executed in her favour by one Sh. [ENTITY] in respect of plot no. 364 and GPA, Will and affidavit executed by Lt. Sh. [ENTITY] in her favour in respect of plot no. 365. These unregistered documents, could not have conveyed any title over the Suit Property to the plaintiff (or to Sh. [ENTITY] or any alleged previous owners) in view of Suraj Lamp & Industries judgment (Supra) discussed above. Further, all these documents are photocopies whose originals have neither been produced nor been accounted for. Furthermore, even if the documents are considered as admissible in evidence, these have not been proved.
15. It is settled law that merely admitting a document in evidence does not lead to it being proved automatically. It has been held by the Hon'ble Delhi High Court in [PRECEDENT] that:
"Endorsement of exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit".
16. Further in [PRECEDENT] the judgment of [PRECEDENT], has been cited with approval wherein it is held that [PRECEDENT] Page no. 8 of 14 [PRECEDENT] [ENTITY] v. Sh. [ENTITY] the correctness of the contents can only be proved by examining the writer. Also in the [PRECEDENT], it is held that:
" Even if the entire document is held formally proved, that does not amount to a proof of the truth of the contents of the document. The only person competent to give evidence on the truthfulness of the contents of the documents is the writer thereof".
17. Furthermore, as per [SECTION] of the [ACT], "
If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting".
18. In light of the aforesaid legal position, let us proceed to analyze whether Ex. PW1/11 (colly) and Ex. PW1/12 (colly) have been proved by the plaintiff. PW1 is neither the author nor a signatory nor a witness to any of the documents comprising Ex. PW1/11 (colly). She has also not recognized the signatures thereon, either of the parties or of the witnesses to the said documents. There is no assertion that the documents were executed in her presence. The signatories of the documents or the witnesses have not been examined to prove their signatures thereon or the factum of execution. Similarly, PW1 has failed to do the aforesaid in respect of Ex. PW1/12 (colly) including identifying her own signatures on any of the documents comprising Ex. PW1/12 (colly). Therefore, in light of the above legal position, PW1 has not been able to prove Ex. PW1/11 (colly) and Ex. PW1/12 (colly), and do no assist the case of the plaintiff in [PRECEDENT] [PRECEDENT] [ENTITY] v. Sh. [ENTITY] any manner.
19. Secondly, in order to prove possession, PW1 has relied on Ex. PW1/4 i.e. post office passbook, Ex. PW1/5 i.e. ration card, Ex. PW1/6 i.e. Dena Bank passbook, Ex. PW1/7 i.e. voter ID card; Ex. PW1/8 i.e. copy of adhar card, Ex. PW1/9 and Ex. PW1/10 i.e. electricity bills. However, most of these documents make reference to plot no. 364 and 365 and not to the constructed portion on these plots i.e. Suit Property, which in the present case is claimed by the plaintiff as the ground floor and terrace built on these plots, whereas, some of these documents such as Ex. PW1/6, Ex. PW1/7 and Ex. PW1/8 make reference to the address "D 25/365" which is not the address of the Suit Property as specified in the plaint. From perusal of these documents, it is not possible to reach any conclusion regarding possession of the plaintiff at ground floor and terrace i.e. Suit Property.
20. Besides, plaintiff has also claimed that she has been receiving rent from the rooms built at the terrace which could easily have been proved by producing the rent agreement or rent receipts. However, she has not produced any rent agreement or rent receipts in support of the aforesaid assertion. As per [SECTION] of the [ACT], the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Since no rent agreement or rent receipts were filed, this leads to an adverse inference under [SECTION] of the [ACT].
21. Lastly and most importantly, in the present case, the Page no. 10 of 14 [PRECEDENT] [ENTITY] v. Sh. [ENTITY] description of Suit Property is so vague and full of contradictions that it is not specifically identifiable. In this respect, it is essential to refer to the contents of the plaint wherein para 13 states that "That for the livelihood the plaintiff rented out the above said property i.e. House No. 364365, Chhatterpur Pahari, New Delhi. There is no other source for the livelihood of the plaintiff except the rental income". Further, para 15 of the plaint states that "That the husband of the plaintiff sold out upper ground flats in the property No. 364, Chhatterpur Pahari, New Delhi to Ms. [ENTITY] w/o Sh. [ENTITY] and other flats to meet out the funds for his illness". Therefore, as per para 13, the plaintiff claims to have rented out House No. 364365 which is now her only source of livelihood and has not claimed that she is actually residing in any portion of the aforesaid property. In para 15 of the plaint, plaintiff states that her husband had sold upper ground flats in property no. 364 to Ms. [ENTITY] and also other flats without making any reference to the number of flats that were sold out or to the floor on which, these flats were situated. There is no indication in the plaint that the plaintiff is residing at the Suit Property.
22. On the contrary, in the affidavit of evidence Ex. PW1/A at para 8, plaintiff has stated that "The plaintiff has been left with her the complete basement, a flat of 50 Sq. Yards at Ground Floor, a flat on 100 Sq. Yards (recently in possession of somebody else) and complete terrace/ roof rights having six temporary rooms over there, the rental income from the same are the only source of livelihood of the plaintiff and rest of the property either have been with defendant with has been given by Mr. [ENTITY] in his lifetime or have been sold to third party to meet out daily and Page no. 11 of 14 [PRECEDENT] [ENTITY] v. Sh. [ENTITY] regular expense". Thus, as per the affidavit, plaintiff claims possession over the basement, a flat of 50 Sq. Yards at ground floor and the terrace having six temporary rooms. From the aforesaid, it is not clear as to which flat number (of 50 Sq. Yards at ground floor) is in possession of the plaintiff, and whether all such portions are in possession being rented out by her or by way of actual residence.
23. As per [SECTION] [ACT]:
"3. Where the subjectmatter of the suit is immovable propertyWhere the subjectmatter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers".
24. The plaint falls foul of this provision. In the present case, the description of Suit Property is not clear. Plaintiff has not specified as to how many flats are existing in building no. 364365 and out of these, which are in possession of the plaintiff. While, the affidavit of evidence claims possession over "a flat of 50 Sq. Yards at ground floor", there is no basis to identify which flat is being referred too. In fact, from the pleading, it is not possible to conclude whether any such flat exists at ground floor or not.
25. During the course of final arguments, the main thrust of the ld. Counsel for plaintiff was that in the written statement, defendants have specifically admitted to the possession of the Suit Property by the plaintiff and it is on the basis of this admission that she is entitled to a decree. Plaintiff has relied on the admissions made by the defendant in the written Page no. 12 of 14 [PRECEDENT] [ENTITY] v. Sh. [ENTITY] statement, namely para 13 of written statement and annexure 1. However, as per para 13 of the written statement "That on the other hand the plaintiff is singly occupying the entire 1st floor of House No. 364 and rented out other two floors without the consent of the other heirs".
26. Thus, defendants have admitted, if at all, to possession of the plaintiff at first floor of House No. 364, which has not been claimed at all by the plaintiff in its own suit. Similarly, annexure 1 also shows first floor having being occupied by the plaintiff, which is not the Suit Property in the present case. Thus, these are not admissions to plaintiff's possession of Suit Property.
27. In a nutshell, the exact address, number of flats and specific description of the Suit Property has not been set out in the plaint. From a perusal of the plaint and affidavit of evidence, it cannot be deciphered as to which portion of property no. 364365 is occupied by the plaintiff or is in her possession and in what capacity. The site plan Ex. PW1/1 is equally sketchy and does not assist in the identification of the Suit Property in any manner. There are no details/ description of adjoining areas of the property as also of the areas within the property over which the plaintiff claims possession. While as per the site plan Ex. PW1/1, plaintiff claims possession over entire ground floor and terrace, as per the plaint, all of the portion in her possession is rented out and as per the affidavit of evidence, she only has possession over one flat of 50 Sq. Yards at ground floor (as opposed to entire ground floor as per site plan) and basement (of which no reference is made in the site plan). The case of plaintiff is marred with serious contradictions on the most material aspect of her case i.e. the Page no. 13 of 14 [PRECEDENT] [ENTITY] v. Sh. [ENTITY] identity of the Suit Property itself. Thus, hypothetically, even if the plaintiff's suit could be decreed, there would be no means to execute the decree as the identity of the Suit Property, over which plaintiff claims her possession, is not clear.
28. In view of the above, not only the plaintiff has failed to establish her ownership or possession in the Suit Property, she has also failed to specifically identify the Suit Property. Accordingly, this issue is decided against the plaintiff and in favour of the defendants.
Issue no. 2 Relief
29. In view of the findings on the aforesaid issues, documents on record, pleadings of the parties, and evidence led, the plaintiff has failed to stand on her own legs to prove her case. Accordingly, suit of the plaintiff is dismissed.
30. No order as to costs.
31. Decree sheet be prepared accordingly.
32. File be consigned to the record room after due indexing and pagination.
([ENTITY]) Civil Judge01(South) Saket Courts/New Delhi 10.01.2019 Announced by me in the open court today on 10.01.2019. All the fourteen pages of this judgment have been checked and signed by me.
Digitally signed by ([ENTITY]) NEHA [ENTITY] Date: Civil Judge01 (South) Saket Courts/New Delhi PRIYA 2019.01.14 16:12:37 10.01.2019 +0530 Page no. 14 of 14