Delhi High Court

Shri Hira Lal vs Shri Bhagwati Prasad & Ors. on 12 January, 2011

Author: Indermeet Kaur

A-8
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment: 12.01.2011


+ RSA No.7/2004 & CM No.443/2004 (for stay,) CM
No.22881/2010 & CM No.23324/2010


SHRI HIRA LAL                                ...........Appellant
                           Through:     Mr.D. Moitra, Advocate.

                     Versus


SHRI BHAGWATI PRASAD & ORS.           ..........Respondents
                  Through: Mr.Sanjay Goswami, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                    Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. This appeal has been directed against the impugned

judgment and decree dated 08.10.2003 which had endorsed the

finding of the trial judge dated 14.7.2003 whereby the suit of the

plaintiff filed by the plaintiff Hira Lal seeking permanent and

mandatory injunction to the effect that defendants no.1 to 5 (who

are tenants in the suit property) be directed not to pay the rent to

the defendant no.6 Om Prakash (brother of the plaintiff) but to the

plaintiff.

2. The plaintiff claimed himself to the owner of house No.C-1

(Plot No.60, MCD No.145), Sanwal Nagar, New Delhi. Defendants

no.1 to 5 were his tenants. Defendant no.6 was his real brother

who has been authorized to collect rent on his behalf from the

tenants. Acrimony arose between the parties. Plaintiff sent legal

notice informing defendant no.6 that he did not want him to collect

rent on his behalf. Defendant no.6 did not adhere to this request.

Present suit was accordingly filed.

3. In the written statement filed by defendant no.6 it is stated

that he i.e. defendant no.6 is collecting rent from the tenants in his

legal capacity. The plaintiff has suppressed material facts and has

not disclosed about the will dated 13.5.1987of their father by

virtue of which the suit property had been bequeathed in favour of

defendant no.6. He was fully authorized to receive the rents from

the tenants i.e. from defendants no.1 to 5.

4. Defendants no.1 to 5 (tenants) had also been served. Three

out of the five tenants i.e. defendants no.1,2 and 5 had filed their

respective written statements. Their contention was that initially

the rent receipts were being issued by them to Hiral Lal i.e. to the

plaintiff up to period 1980; thereafter his father Babu Lal as owner

was getting the rent receipts issued in his name from 1981 to

1990. Babu Lal died in 1990; after his death Om Prakash

(defendant no.6) had evidenced himself as the owner in respect of

whom the rent receipts which were being issued from the year

1991.

5. On the basis of these pleadings, the trial judge had framed

the following three issues: it read as follows:

1.Whether the suit of the plaintiff is not maintainable and hit by the provisions of Sec.41(h) of Specific Relief Act. OPD

2.Whether the plaintiff is entitled for the decree of permanent and mandatory injunction as prayed against the defendant? OPP

3.Relief.

6. On the basis of the oral and documentary led by the parties

the court had held that the plaintiff is not entitled to a decree. He

was admittedly not in possession of the suit property. He did not

even know the details of the tenants. The water bill and the house

tax assessment produced by him did not mention the name of the

property; even otherwise it pertained to the year 1971-72; the

defendant no.6 had become owner of the property by virtue of the

will of their who had died in the year 1990. The defendant had

produced on attesting witness to the will of their father which had

been proved as Ex.DW-1/1.

7. The finding of the trial judge on issue no.2 returned inter alia

read as follows:

"ISSUE NO.2

Under this issue the plaintiff is required to prove that he has legal right title or interest to the suit property. The plaintiff in his plaint has stated that he is owner of the suit property but he is silent as to how he become owner of the suit property and in whole of the --- he has not disclosed the same. In his affidavit produced in the evidence he has stated that he is owner of house no.C-1 and have simply stated that defendant no.6 has been collecting the rent on his behalf. Thus the plaintiff has not brought only iota of evidence on the file to show and to prove his claim of ownership. There is no document of ownership in the name of the plaintiff on the file. During the cross examination the plaintiff put forward his case by stating that he became owner of the property by purchasing it from the association though it was not the specific case of the plaintiff and was beyond the pleadings but still treating it as correct, the plaintiff has not produced any statement to that effect on the file. He introduced a new case in cross examination stating that there were 12 tenants in the suit property though he is talking about the five tenants and is silent regarding the seven tenants in the body of the plaint. He has stated that he does not know all the tenants which also shows that tenants were never kept by him or he has no concern with the suit property. He has stated that House Tax of the property was assessed in his name but the argument is not tenable firstly mere entering in the house tax registered will not

create title in the plaintiff and secondly in Ex. PW1/G in House Tax Assessment number of the property is not mentioned and only 60 is written. To the same effect in the Water Bill MCD No.145 is not made out from this document. Mere issuance of notice will not create title in the plaintiff and he had to prove his statements by cogent and reliable evidence. The counsel for the plaintiff has argued that in the rent receipt the name of the plaintiff in the column of ownership has been mentioned but again same argument is not tenable because the plaintiff has not denied that these receipts pertains to 1971 and 1972 and father of the parties died in 1990. If it has self acquired property then there must be some document and if it was ancestral property then till the death of his father no valuable rights have accrued in favour of the plaintiff. WS filed on behalf of defendant no.1,2 and 5 is also on the record in which they have stated that name of owner in rent receipts has been continuously been changed and it also goes against the plaintiff because these receipts cannot be taken as proof of ownership. DW1 has proved Will in favour of defendant in which at Sr.No.1 the present suit property is mentioned. DW1 has proved Will and has stated that he knew the executants and the Will was read over to the executants. The counsel for the defendant has argued that he has proved the Will as per law and relied upon AIR 2003 SC 761 and has stated that when will has been proved and executant has been proved by one attesting witness who has proved the execution of the will then examination of other attesting witness can be dispenced with. DW2 defendant no. 6 has given the detailed account as to how Sanwal Nagar was carved out. The plaintiff has not challenged the Will and moreover in para no. 2 of WS the defendant no. 6 has stated that three rooms are in physical possession of the defendant no. 6 and that there are nine tenants and plaintiff has no knowledge of any tenant and the same averments have not been denied of accepted or replied by the plaintiff in his replication and the same are deemed to be admitted by the plaintiff. The plaintiff has not brought forward any reliable and cogent evidence in support of his pleadings. For the relief of the injunction the plaintiff has to specifically prove the main ingredient i.e. he is legally entitled to the suit property and there is invasion of that right but what to talk of invasion. The plaintiff has failed to prove the first ingredient of legally entitlement against the oral evidence of the plaintiff, there is documentary evidence with defendant in the form of Will and there is nothing on the file to discard the testimony of the witness of the defendant. The will has been duly proved. It can be said that the defendants has firstly to prove that father was owner of the suit property and only then Will could have created rights in favour of the defendant but

simultaneously this fact also cannot be ignored that this is a plaintiff who had approached the court and he has to prove his case and he can not take benefit of the weakness of the defendant as per 1998 (1) Punjab Law Reported 80 and further that plaintiff has come forward with the plea that suit property was purchased form the association then he should have proved his plea. Hence no right of injunction is made out. I am of the considered opinion that plaintiff is not entitle to any relief."

8. This finding of the trial judge was affirmed in appeal by the

impugned judgment dated 08.10.2003; suit of the plaintiff was

dismissed.

9. On behalf of the appellant, it has been urged that the

documentary evidence has not been appreciated in its correct

perspective and there is a perversity in the finding in the impugned

judgment. Substantial questions of law have been formulated on

page 6 of the memo of appeal; they inter alia read as follows:

"(a)Whether the declaration of title/ownership of the property can be decided when the same was never been prayed in the suit.

(b)Whether the alleged Will of 1987 have any relevance when admittedly the rent receipt issued since 1971 clearly shows the Appellant as owner of the proper.

(c) Whether the veracity of the Will can be decided in an injunction suit without the same being proved by the Probate and/or related proceedings.

(d) Whether the alleged Will can be considered when it has been specifically pleaded that Father of the Appellant/Respondent No.6 was never been the owner of the suit property."

10. All these questions are fact based; they do not raise any

substantial question of law. The impugned judgment had correctly

noted that no evidence had been produced by the plaintiff to claim

right, title or interest in the suit property. Plaintiff had contended

all along that he is the recorded owner of the suit property and he

had received this property from the Association; no such evidence

was forthcoming. The will set up by the defendant claiming right

to the suit property through their deceased father Babu Lal had

been proved as Ex.DW-1/1. Even in the replication filed by the

plaintiff, he had not made any categorical repudiation of the will.

His contention was that this will was obtained by the defendant by

exercising influence on their father. No substantial question of law