Delhi High Court
Nirmal Bhalla vs Kavita Bhalla on 17 October, 2011
Author: V. K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 17.10.2011
+ CS(OS) 808/2010
NIRMAL BHALLA ..... Plaintiff
Through: Mr. Ashish Bhagat, Adv.
versus
KAVITA BHALLA ..... Defendant
Through: Mr. Vikas B. Pakhidden, Adv.
for D-1.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported No
in Digest?
V.K. JAIN, J. (ORAL)
1. This is a suit for recovery of possession, mandatory
injunction in respect of the the second floor of property
No.4/54, Malviya Nagar, New Delhi. The case of the plaintiff
is that she purchased the second and third floor of property
No. 4/54, Malviya Nagar, New Delhi, from Smt. Laxmi Devi
by virtue of an Agreement to Sell, General Power of Attorney
CS(OS)No.808/2010 Page 1 of 7
and Will all executed on 6th January, 1993. Defendant No.2
is the son of the plaintiff whereas defendant No.1 is her
daughter-in-law, being the wife of defendant No.2. It is
alleged in the plaint that defendant No.2 shifted from the
suit property in August, 2007 and started living separately
along with defendant No.1. In January, 2010, the
defendants persuaded the plaintiff to allow them to return
to the suit property and accordingly they came back to the
suit property and started living there. It is alleged that
defendant No.1 was forcing the plaintiff to transfer the suit
property in her name and when the plaintiff refused to do
so, she filed complaint against the plaintiff alleging
maltreatment and harassment for dowry. It is further
alleged that defendant No.2 again decided to leave the
plaintiff and shifted to a rented accommodation in
Paryavarn Complex, IGNOU Road, New Delhi, in April, 2010
along with all his belongings and accordingly both the
defendants left the suit property in April, 2010 and went to
live in a rented accommodation. It is also alleged that on
12th April, 2010, the plaintiff was informed that defendant
No.1 was breaking the locks and doors of the second floor in
order to get entry into the same. When the plaintiff
CS(OS)No.808/2010 Page 2 of 7
returned to the house, she found that defendant No.1 along
with her two elder sisters had broken upon locks and doors
and they were trying to break the remaining locks. The
plaintiff informed the Police but no action was taken by
them. Since then defendant No.1 has not gone back from
the suit premises and continues to live there. The plaintiff
has now sought possession of the suit property comprising
the second floor of property No. 4/54, Malviya Nagar, New
Delhi, and has also sought mandatory injunction directing
the defendants to deliver the peaceful and vacant
possession of the aforesaid premises. She has also sought a
permanent injunction restraining the defendants from
threatening her and restraining them from being in the near
vicinity of the suit property.
2. Defendant No.2 did not come forward to contest
the suit. Defendant No.1 did not file written statement
within prescribed period and filed IA 9519/2010 for
condonation of delay in filing the written statement. That
application was allowed by this Court vide order dated
22.07.2010, subject to payment of Rs.25,000/- as costs.
The order passed by this Court on 22nd July, 2010 was
challenged by defendant No.1 before Division Bench of this
CS(OS)No.808/2010 Page 3 of 7
Court. The appeal filed by her, being FAO(OS) 501/2010
was, however, dismissed by a Division Bench on
9th August, 2010. IA 16577/2010 was thereupon filed by
the plaintiff for striking off the defence of defendant No.1.
The right of defendant No.1 to file the written statement was
closed vide order dated 3rd March, 2011. Right of defendant
No.2 to file written statement was also closed on that date.
The plaintiff, however, was directed to file affidavit by way of
evidence to satisfy the Court with respect to merit of her
case.
3. In her affidavit by way of evidence, the plaintiff has
affirmed, on oath, the case set up in the plaint and has
stated that she is the sole owner and in possession of the
second floor of property No. 4/54, Malviya Nagar, New Delhi
by virtue of Agreement to Sell, General Power of Attorney
and Will executed by Laxmi Devi in her favour which are
Ex.PW-1/3 to 6. In her affidavit by way of evidence, the
plaintiff has stated that there was no contribution from any
of her children in purchase of the suit property. She has
further stated that defendant No.2, who is her elder son has
taken separate dwelling on rent and is living there with his
children, whereas defendant No.2 continues to live on
CS(OS)No.808/2010 Page 4 of 7
second floor of the suit property without her husband. She
has further stated that the defendants had shifted from suit
property in August, 2007, to a rented accommodation.
According to her, in January, 2010, the defendants
persuaded her to allow them to return to the suit property
to which she reluctantly agreed on account of her love for
defendant No.2. The defendants accordingly shifted to the
suit property on 31st January, 2010 and started living there.
She has alleged that the behavior of defendant No.1 did not
improve even thereafter and she continued misbehaving and
ill-treating her, so as to force her transfer of suit property in
her name. She has further stated that defendant No.2 again
decided to leave her and, therefore, took a house in
Paryavarn Complex, IGNOU Road, New Delhi, on rent in
April, 2010. Defendant No.1 also moved out of the suit
property to a rented accommodation along with defendant
No.2 though much against her wish. On 12th April, 2010,
she was informed by someone that defendant No.1, with the
help of some people, was breaking the locks and doors on
the second floor of the suit property. When she rushed
back to the house, she found that defendant No.1 along
with her two sisters had broken upon the locks and doors
CS(OS)No.808/2010 Page 5 of 7
and they were trying to break the remaining locks too. She
called the Police but again no action was taken. Thereafter,
defendant No.1 did not return to her husband and has been
living in the suit property as a rank trespasser.
4. I see no reason to disbelieve the unrebutted
testimony of the plaintiff. Vide Agreement to Sell
Ex.PW-1/3, Power of Attorney Ex. PW-1/4 and Will
Ex.PW-1/5, the plaintiff purchased the second and terrace
floor of property No. 4/54, Malviya Nagar, New Delhi from
Smt. Laxmi Devi. Since the second floor of the suit property
as also is terrace is owned exclusively by the plaintiff, the
defendants have no right to continue to live in any part of
the aforesaid property against her wish and without her
permission. The testimony of the plaintiff would show that
both the defendants vacated the suit property initially in
August, 2007 and then again on 1st April, 2010. The
possession of defendant No.1 in the suit property, therefore,
is absolutely illegal and unauthorized. The plaintiff,
therefore, is entitled to a mandatory injunction directing
defendant No.1 to remove herself along with all her
belongings from property No. 4/54, Malviya Nagar, New
Delhi. She is also entitled to an injunction restraining the
CS(OS)No.808/2010 Page 6 of 7
defendants from entering the suit property without her prior
permission.
ORDER
A decree for mandatory injunction is hereby passed
in favour of the plaintiff and against defendant No.1
directing defendant No.1 to remove herself along with all her
belongings, from the second floor of property No. 4/54,
Malviya Nagar, New Delhi, within six weeks from the date of
this order. A decree for permanent injunction is also passed
restraining the defendants from entering the second floor of
property No. 4/54, Malviya Nagar, New Delhi, without prior
written permission of the plaintiff. In the facts and
circumstances of the case, there shall be no order as to
costs.
Decree sheet be drawn accordingly.
(V.K. JAIN)
JUDGE
OCTOBER17, 2011
'sn'
