Pratap Pawar vs Priya Pawa & Anr.
1998 Latest Caselaw 584 Del

ORDER

A.K. Srivastava, J.

1. This is a suit for declaration and permanent injunction with the contentions, inter alia, that the plaintiff is the real and beneficial owner of the flat at ground floor, Block D-II/3322, Vasant Kunj, New Delhi (hereinafter referred to as the "said flat") lease hold rights of which were purchased from the defendant No. 2 in the name of defendant No. 1 (wife of the plaintiff) for the benefit of the plaintiff out of the funds provided by the plaintiff; that the said flat was being held in trust by defendant No.1 on behalf of the plaintiff; that the plaintiff has been in lawful occupation of the flat; that the plaintiff paid a sum of Rs.4 lacs to the defendant No. 2 in respect of the instalments payable to defendant No. 2; that those payments were made from the accounts of the plaintiff being State Bank of India, Parliament Street, New Delhi and the State Bank of Indore; that the matrimonial relations between the plaintiff and defendant No. 2 deteriorated and collapsed due to cruelty on the part of defendant No. 1; that the defendant No.1 had thrown out the plaintiff from their matrimonial home at London and consequently the plaintiff came to India on December 8, 1994 and since then he has been residing in the said flat along with his widowed sister.

2. The plaintiff further contends that he received a threat from defendant No.1 on December 15, 1994 that she would dispossess him forcibly; that Shri Vijay Chakraborty, brother of defendant No.1 also similarly threatened the plaintiff in October/November, 1994.

3. On the basis of the aforesaid averments the plaintiff seeks the following reliefs:

"(a) decree of declaration that the plaintiff is the real and lawful and absolute owner of Flat No. D-III-/3322, Vasant Kunj, New Delhi;

(b) decree of permanent injunction restraining the defendants or their agents or anyone else acting on behalf of defendant No.1 from alienating, transferring, creating any interest or otherwise parting with any right, title or interest of Flat No. D-III/3322, Vasant Kunj, New Delhi in favour of anybody and to restrain defendant No.2 from giving any effect to transfer or mutation of the said flat in favour of defendant No.1 or anyone else;

(c) decree of permanent injunction restraining defendant No.1 and or her family members, agents, servants or anyone acting on her behalf from dispossessing the plaintiff and his family members from the said flat;

(d) decree of permanent injunction restraining defendant No.1 from entering into the said flat and from threatening intimidating or in any other manner harassing the plaintiff; and

(e) pass such other and further order/orders as may be deemed fit and proper in the facts and circumstances of the present case;

(f) costs may be awarded in favour of the plaintiff."

4. An interim application under Order 39 Rules 1 and 2 was moved by the plaintiff for certain interim restraint orders. That application was decided in favour of the plaintiff by K. Ramamoorthy, J. vide order dated July 23, 1996. An appeal was preferred against that order but the same was dismissed by the Division Bench on September 4, 1997.

5. Defendant No.1 filed her written statement contesting the plaint case on all counts.

6. On February 27, 1997, K. Ramamoorthy, J. had framed the following issues:

1. Whether the plaintiff is entitled to a decree of declaration that the plaintiff is the real and lawful and absolute owner or Flat No. D-III/3322, Vasant Kunj, New Delhi?

2. Whether the plaintiff is entitled to a decree of injunction?

3. Relief.

7. By order dated August 12,1997, S.N. Kappor, J. fixed 2nd March, 1998 to 4th March, 1998 for trial. On March 2, 1998 since none was present for the defendants, the suit proceeded ex parte and the plaintiff was given the opportunity to file evidence by way of affidavit by the next date.

8. The plaintiff filed affidavits of PW 1 Pratap Pawar, PW 2 Asawari Pawar, PW 3 Prashant Pawar. Ex parte arguments were heard on July 15, 1998.

9. I have gone through the plaint and the evidence given by the plaintiff. In my opinion, the plaintiff has been able to prove his case. Findings on the issues framed are given in favour of the plaintiff with certain modifications. Learned counsel for the plaintiff herself conceded that in para (d) of the prayer clause the words " in any other manner harassing the plaintiff" are very wide and she left the matter for the Court whether to grant or not to grant such injunction.

10. In view of above, the suit of the plaintiff is partly decreed with ex parte costs. It is declared that the plaintiff is the real, lawful and absolute owner of the flat at ground floor, Block No. D-III/3322, Vasant Kunj, New Delhi. The defendant No.1 and/or her agents and/or anyone else acting on her behalf is restrained from alienating, transferring, creating any interest or otherwise parting with any right, title or interest of the said flat in favour of anybody. Defendant No. 2 is also restrained from giving effect to any transfer or mutation of the said flat on the basis of any transfer made by defendant No.1. The defendant No.1 is restrained from dispossessing the plaintiff and his family members from the said flat.

11. The defendant No.1 is further restrained from entering into the said flat.