Harcharan Singh Hazooria vs Kulwant Singh Hazooria & Ors.
2009 Latest Caselaw 3350 Del

*          HIGH COURT OF DELHI : NEW DELHI

     +     I.A No. 13043/2008, I.A No. 3281/2009 and
           IA No.4977/2009 in CS (OS) No. 2244/2008

                                   Reserved on: July 2, 2009

%                                  Decided on: 25th August, 2009

Harcharan Singh Hazooria                               ...Plaintiff
                    Through        : Mr. Vikas Dhawan, Adv. with
                                     Mr. S.P. Das, Adv

                       Versus

Kulwant Singh Hazooria & Ors.                   ...Defendants
                   Through : Mr. A.S. Chandhiok, Sr. Adv. with
                              Mr. D.D. Singh, Adv. for Defendants
                              No.1 & 3
                              Mr. M.S. Rama Murthy, Adv. For
                              Defendant No.3
Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                         No

2. To be referred to Reporter or not?                      No

3. Whether the judgment should be reported                 No
   in the Digest?

MANMOHAN SINGH, J.

1. By this order I shall dispose of three interim applications

being I.A No. 13043/2008 filed by the plaintiff under Order 39 Rule 1 &

2, I.A No. 3281/2009 filed by defendant nos. 1 to 3 under Order 39 Rule

1 and 2 and I.A No. 4977/2009 filed by the plaintiff under Order 39 Rule

2A of the Civil Procedure Code, 1908.

2. The facts of the case are that the plaintiff filed the present suit

for partition, rendition of accounts, declaration and injunction against the

defendant. The plaintiff submits that Late Smt. Jaswant Kaur executed

her last will dated January 5, 1996 as per which the property at 60 Ring

Road, Lajpat Nagar III, New Delhi (hereinafter referred to as the suit

property) along with other movable assets were to devolve upon the

plaintiff and Defendant No. 1 in equal shares and Defendant No. 3 was

to receive an amount of Rs. 10,00,000/- from the plaintiff and Defendant

No. 1.

3. The plaintiff alleges that the Defendants No. 1 and 3 have got

executed and registered two gift deeds in their favour whereby the entire

suit property is said to be gifted by Late Smt. Jaswant Kaur to the said

two Defendants. As per the plaintiff, both gift deeds are forged and

bogus. As regards the said gift deeds dated May 23, 2007 and June 2,

2008 the plaintiff states that at that time the deceased was 97 and 98

years of age respectively, and not in any condition to form a judgment as

regards her own interest.

4. In addition to this, it is submitted that though in April 2007

the deceased had signed a certificate to the effect that the plaintiff was

residing with her in the suit premises, the gift deeds of 2007 and 2008

have only thumb impressions of the deceased which, as per the plaintiff,

have been forcibly taken. Further, the witnesses of both gift deeds are

one Amrita Kataria and one Danita Sawhney, both of whom are

daughters of the beneficiary Defendant No. 3 and therefore not

independent witnesses.

5. The plaintiff further submits that by a lease agreement dated

January 1, 2001, about 3000 sq. ft. on the ground floor area of the suit

premises was rented out by Defendants no. 1 and 3, purportedly on

behalf of the deceased, to M/s Redington India Ltd. at a monthly rent of

Rs. 70,000/-. Thereafter, on or around September 4, 2003 Defendants no.

1 and 3 entered into a lease agreement in the name of the deceased with

Seasons Furnishing. As per the plaintiff, the rent proceeds of both the

afore-mentioned lease deeds have been misappropriated by the said two

defendants.

6. The plaintiff avers that it has a right over half of the rent

proceeds in respect of the suit property and as such the act of the

Defendants no. 1 and 3 is illegal and mala fide. The plaintiff submits that

though he went abroad in 1961 and returned to India in 2007 to live in

the suit premises with his mother. Since January 2008, the plaintiff and

his wife are in possession of one bedroom on the second floor. In lieu of

the alleged forged gift deeds mentioned above, the plaintiff alleges that

Defendants no. 2 and 3 are threatening to dispossess him from the suit

property.

7. It is in these circumstances that the plaintiff filed I.A No.

13043/2008 wherein he has prayed for an ex parte ad interim injunction

that (i) Defendants no. 1 and 3 be restrained from parting with the

possession and/or creating third party rights in respect of the suit

property; (ii) Defendants no. 1 and 3 be restrained from interfering with

the possession of the plaintiff over a portion of the suit premises on the

second floor being one bedroom as well as enjoyment of the common

areas thereof, including ingress/egress of the plaintiff and his family; (iii)

Defendants no. 1 and 3 be restrained from withdrawing and/or

appropriating the rent being received in the respect of that portion of the

suit premises which has been leased to Sundari Apparels (India) Pvt.

Ltd.

8. In their reply, Defendants no. 1 and 3 have submitted that the

present suit is not maintainable as on the date of the deceased's death,

the deceased had no right in the suit property as already vide registered

gift deed dated May 23, 2007 a part in the property had been vested in

Defendant No. 3 and vide registered gift deed dated June 2, 2008 the

remaining part was vested in Defendant No. 1.

9. It is further submitted that the plaintiff is in illegal occupation

of part of the suit premises and the answering defendants have filed a

counter claim in their written statement seeking a direction for the

removal of the plaintiff from the suit premises in addition to mesne

profits @ Rs. 25,000/- per month.

10. One of the contentions of the defendants is that since the

plaintiff has failed to file a written statement to the counter claim of the

defendant, therefore, the counter claim of the defendants is liable to be

decreed. On going through the record, it appears that the counter claim

filed by the defendants is yet to be registered, therefore, I direct the

Registry to register the counter claim of the defendants. The plaintiff is

permitted to file written statement to the counter claim within four weeks

from today.

11. The defendants contend that by the plaintiff's own admission,

the deceased was stated to be in a condition well enough to affix her

signatures on a certificate, therefore it is evident that she would be in a

fit condition to take a decision as regards gifting of the suit property.

12. It is also the defendants' contention that the plaintiff is in

unauthorized and illegal occupation of one room and attached toilet on

the second floor of the suit property. During the arguments on July 2,

2009, the counsel for the plaintiff averred that the plaintiff was in

possession of the kitchen in addition to the bedroom on the second floor

and was illegally dislodged from the same despite the order to maintain

status quo.

13. This averment of the plaintiff is refuted by the answering

defendants who contend that the plaintiff by his own admission in the

plaint has only been in possession of a bedroom on the second floor of

the suit premises. The plaintiff's claim that he has been using the toilet

for cooking is also refuted by the answering defendants.

14. The defendants further submit that the photographs of the

said kitchen (allegedly clicked on November 3, 2008 and December 12,

2008) submitted by the plaintiff on May 26, 2009 have been fabricated

as the plaintiff has never used the said kitchen for his personal purposes.

As regards the same photographs, the defendants also submit that on

November 1, 2008 they were blessed with a great-grand child, and on

the said date of November 3, 2008 the afore-stated kitchen was being

used for baking cakes for distribution among friends and relatives and

hence the said photographs could not have been taken on that date. The

said kitchen is being used by the daughter of Defendants No. 1 and 3 for

her confectionary business.

15. The answering defendants state that being the exclusive

owners of the suit property, they are entitled to the rental emitting from

the same. The answering defendants also plead that the order of status

quo passed on October 24, 2008 be vacated as the plaintiff has been

creating a nuisance by returning to the suit premises at odd hours of the

night and bringing unsocial elements thereto, thereby causing discomfort

and security peril to the defendants.

16. The second application being I.A No. 3281/2009 has been

filed by the defendants under Order 39 Rule 1 and 2 praying for the

following:

(i) direct the plaintiff to remove himself from the said room

and bathroom on the second floor of the suit property, or in

the alternative,

(ii) restrict the possession of the plaintiff to one bedroom in the

suit premises till disposal of I.A No. 13043/2008;

(iii) restrain the plaintiff from causing nuisance in the suit

premises and from coming back to the same after 10 P.M

and from bringing anti-social elements thereto;

(iv) restrain the plaintiff from taking possession of any portion

of the suit premises by force or otherwise in addition to the

said room and bath room in his possession;

(v) direct the plaintiff to pay Rs. 25,000/- per month as mesne

profit for illegal occupation w.e.f. March 1, 2009.

17. It is the contention of the defendants that the plaintiff had

been allowed to reside in the suit property earlier with the permission of

the deceased and subsequently with the permission of the defendants. It

is submitted that the plaintiff is taking undue advantage of the order of

status quo and is attempting to forcibly intrude upon the other rooms and

kitchen on the second floor with the intention of occupying as much area

on the second floor as possible and then retaining the same under the

protection of the status quo order.

18. The plaintiff also filed another application being I.A. No.

4977/2009 under Order 39 Rule 2A filed on April 15, 2009 wherein it

has been submitted that the defendants have interfered with the

plaintiff's enjoyment of facilities which were existing at the time of

passing of the status quo order dated October 24, 2008. It is stated that

the defendants are systematically interfering with the plaintiff's

enjoyment of basic necessities by locking up the kitchen on the second

floor as well as an old kitchen on the third floor, compelling the plaintiff

and his wife to order food from outside and use the toilet for making

tea/coffee etc.

19. The plaintiff submits that the defendants are not allowing the

plaintiff and his wife to reside comfortably in the suit premises. It is

alleged that the defendants are obstructing the plaintiff's entry into the

common areas/facilities of the house as well as allowing trespassers to

enter his bedroom, as is evidenced by the entry of Mr. Shishir Thakur of

Security Lifestyle Technology (for electronic surveillance) on January

29, 2009. Also, allegedly on several occasions the entry of the plaintiff

and his wife into the suit premises was deliberately delayed by the

defendants as they refused to open the main door for more than 30

minutes. The plaintiff has prayed that the defendants be held guilty of

contempt of this court's order and further be directed to purge

themselves of this contempt, and also that the suit premises, to the extent

of the share of defendant no. 1 be attached.

20. The defendants in their reply have categorically stated that

the plaintiff was never in possession of any common facilities in the said

premises and was only using one bedroom and attached toilet on the

second floor. The defendants contend that since the plaintiff was not in

possession of the said kitchen he could not have been dispossessed of the

same and therefore, the defendants have committed no violation or acted

in contempt of the order of status quo. The plaintiff's allegation as

regards a trespasser trying to install electronic surveillance in his

bedroom with the defendants' permission is denied and it is submitted

that the said system was installed in the room when the mother of the

parties was alive, to enable quick assistance to her and that the same has

been removed after her demise. It is submitted by the defendants that the

plaintiff and his wife are in possession of a house in Greater Kailash,

New Delhi which belongs to the father-in-law of the plaintiff and is

currently lying vacant.

21. When the suit for partition was filed by the plaintiff as per

Para 5 of the plaint the plaintiff claimed that he was in possession of and

was residing in one bed room on the second floor of the premises

bearing No. 60, Ring Road, Lajpat Nagar Part III, New Delhi, although

in the application for injunction one of the prayers in I.A.No.13043/2008

is that defendant nos. 1 and 3 be restrained from interfering with the

possession of the plaintiff over the portion of the suit property on the

second floor being one bed room as well as enjoyment of the common

areas and/or facilities within the suit premises on the date of filing of the

suit. However, there is no specific averment made by the plaintiff

anywhere in the suit that on the date of filing of the suit the plaintiff was

also enjoying the facilities of use of kitchen though the same has been

claimed by the plaintiff in I.A No. 4799/2009.

22. It is a matter of fact that in the earlier suit filed by the

plaintiff in this court being CS (OS) No. 707/2008, there is no specific

statement by the plaintiff as to use of the kitchen as claimed by the

plaintiff. In support of his contention, the plaintiff has filed

photographic evidence on May 27, 2009 showing that he had possession

of the kitchen on November 3, 2008 on the second floor of the suit

premises, i.e. before passing the ex-parte ad-interim order for

maintaining the status quo. The plaintiff has filed two other digital

photographs depicting the dates 12th December, 2008 and 3rd April, 2009.

In one photo it appears that the microwave, gas cylinder and gas stoves are

placed outside the kitchen and in another it is shown that the plaintiff's

utensils, toasters etc are placed in the bathroom. But, it appears from the

record that another set of photographs have been filed by defendant No.1

and 3 on 28th May, 2009 which is one day after photographs were filed by

the plaintiff showing that on November 3, 2008 the very same kitchen is

being used by family members of the defendant Nos.1 and 3. In view

thereof, one thing is clear that one of the parties is making an incorrect

statement before the court, therefore, in the absence of trial, one can not

come to a final conclusion of the disputed fact. As two sets of photographs

have filed by the parties which are of the same date i.e. 3rd November, 2008,

in the absence of evidence, one is unable to come to a conclusion as to who

was actually in possession of the kitchen in dispute on the date of interim

orders passed by the Court on October 24, 2008.

23. The other fact is that the three digital photographs have

been filed by the parties after the expiry of six months. Further, no

specific statement in the plaint has been made by the plaintiff, hence at

this stage, as regards the issue as to whether the plaintiff was in possession

of the kitchen or not, I feel that the same has to be determined at the time

of trial and the parties are given liberty to produce respective evidence

in this regard. As regards the contention of the interim orders, I am

of the view that the plaintiff has made a prima facie case in his

favour and he is entitled for the protection already granted. For the reasons

stated above, all the applications filed by the parties i.e. I.A.

No.13043/2008, I.A. No. 3281/2009 and 4977/2009 are disposed of with the

direction that the order dated October 24, 2008 is made absolute and no

further directions are required in these applications.

CS (OS) No.2244/2008

24. The plaintiff is further permitted to file written statement to

the counter claim filed by the defendant within four weeks with advance

copy to the learned counsel for the defendant who may file replication in

the counter claim within four weeks thereafter. The parties are given 8

weeks time to file the original documents. List the matter before the

Joint Registrar on 4th January, 2010 for admission and denial of

documents.

MANMOHAN SINGH, J AUGUST 25, 2009 nn