Kewal Kishan Khanna And Ors. vs Chameli Devi And Anr.
2000 Latest Caselaw 1136 Del

JUDGMENT

S.K. Agarwal, J.

1. The plaintiffs in the suit have prayed for grant of permanent injunction against the clcicndants, their agents and servants etc. restraining them from causing any interference with the plaintiffs, possession of the half portion of the properly No. 2626, Ward No. 16, Khasra No. 245, M Block, Naiwala, Bank Street, Karol Bagh, New Delhi measuring 111 sq. yards of the share of Bhola Ram Jain (for short the Suit Property) and for mandatory injunction directing Defendant No. 1 to remove her goods from the suit premises and for damages.

2. It is alleged that the plaintiffs purchased the suit property from 1st defendant vide three separate sale deeds dated 3rd September, 1997; that apart from conveying the title held by the 1st defendant she had also handed over the possession of the suit property, the proprietary possession of one shop on the ground floor, which was under the tenancy of Sh. Ram Lal Ashok Kumar; it is alleged that originally the entire property 2626/XVI/M measuring 222 sq. yards, Bank Street, New Delhi was owned in equal shares by S/S. Neki Ram Jain and Bhola Ram Jain sons of Late Shri Ramji Lal; Bhola Ram Jain who was the owner of the half portion of this suit property died on 3rd October, 1973; his son Sh. Sriniwas Jain also expired leaving behind his wife Smt. Chameli Devi ( defendant No. 1) two daughters Pinki Jain ( defendant No. 2) and Sunita Aggarwal ( defendant No. 3 ) Sunita Aggarwal-defendant No. 3 relinquished her share in the suit property. After selling her rights in the suit property in favour of her mother vide registered relinquishment deed dated 16th December, 1975. Thus defendant No. 1 Chameli Devi held and owned 19/42, undivided share in the lease hold rights in the suit property, she requested that she may be permitted to keep her old household items like old sofa, fridge, 14" B/W TV, Trunks (for short household articles) in one room on the first floor in the suit premises which was sold to the plaintiff. It is alleged that she had promised that she would lift the said articles within a month or so and defendant No. 1 was thus given permissive storage space by the plaintiffs on humanitarian grounds as she pleaded that it was not possible for her to lift away and store the said old household articles in her flat in Rohini. It is further alleged that the plaintiff requested defendant No. 1 number of times to lift and remove away her old household articles but the said defendant failed to do the needful. On the contrary, she threatened the plaintiffs that they would be forcibly dispossessed. On the basis of these averments the plaintiffs sought: the above relief. Plaint was registered, summons were issued to the defendant for 14th January, 1999. The defendant No. 1 refused to accept service and that service was effected by affixation; she was held to be duly served and was proceeded against ex parte. Fresh summons were ordered to be issued to defendant No. 2.

3. In the meantime, defendant No. 2 Pinki Jain also sold her share in the suit property in favour of the plaintiff on 8th March, 1999. On 4th October 1999, learned counsel for the plaintiff slated that the plaintiffs' claim against defendant No. 2 stands satisfied. As noticed above, defendant No. 3 Sunita Aggarwal had already relinquished her share in the suit property in favour of defendant No. 1. Plaintiff was permitted to lead ex-parte evidence by way of affidavits.

4. The plaintiffs in support of their case filed evidence by way of affidavit of Vijay Khanna (plaintiff), who has supported the averments made in the plaint and has proved three sale deeds dated 3rd September, 1997 Exhibits P-1 to P73. He has further stated in the affidavit that during the pendency of the suit, Pinky Jain (defendant No. 2) sold her share in the suit property on 8.3.99 vide sale deed exhibit P-4 and thus the plaintiffs claim against her stood satisfied. Para 9 of the affidavit reads as under :

"9. That on 3.9.97 when defendant No. 1 Smt. Chameli Devi was conveying possession of whatever portion was in her possession including the room on the first floor of the property shown bounded red in the plan, she was on request permitted to keep her odd house-hold items like old sofa, old fridge, and old 14" black and white TV trunk etc. on one side of the said room. She promised to lift away the said articles which were temporarily left with the plaintiffs within a month or so. But.in spite of repeated requests she has not removed her articles from the aforesaid premises. Instead she was harsh with the plaintiffs and rather extended threats on 3.10.97 of forcible possession".

5. I have heard learned counsel for the plaintiff and have been taken through record.

6. Learned counsel for the plaintiffs rightly and fairly conceded that the plaintiffs do not press for the decree of permanent injunction restraining the defendants from interfering in the possession of the plaintiffs, and the claim for damages. In fact there is no evidence to support these reliefs.

7. Learned counsel for the plaintiffs has however prayed that only a decree of mandatory injunction requiring the defendant No. 1- Chameli Devi to remove her goods from the suit premises be passed: evidence lead by affidavit and the documents placed on record show that the suit property was sold by the defendants to the plaintiffs, through registered sale deeds dated 3rd September, 1997 and possession was also delivered: that the plaintiff s permitted defendant No. 1 to temporarily store her household articles as she could not accommodate these articles in her new flat in Rohini and that she had failed to remove the said articles, despite requests by the plaintiffs. Defendant No. 1 Chameli Devi has remained ex parte. Evidence lead by the plaintiff is thus unrebutted. There is nothing on record to disbelieve the averments made by the plaintiff in his affidavit. The plaintiffs have succeeded in proving that defendant No. 1 - Chameli Devi was temporarily permitted to store her household articles and that she has failed to remove these articles despite requests. Thus, case for grant of mandatory injunction against defendant No. 1 as prayed in the suit is made out.

8. Accordingly, the suit is decreed to the limited extent. - Chameli Devi defendant No. .1 is ordered to remove her old household goods as detailed in the plaint, from the room on the first floor of the suit property. No order as to costs.