Sumitra Devi Monga vs Sham Monga And Anr.
2011 Latest Caselaw 5247 Del

*              HIGH COURT OF DELHI: NEW DELHI

%                                  Judgment pronounced on: 31.10.2011

+                       CS(OS) No.891/2009


SUMITRA DEVI MONGA                                     ..... Plaintiff
               Through             Mr. Deepak Bashta & Mr. Dinesh
                                   Monga, Advs. for Mr. M.S.Vinaik,
                                   Adv.

                        Versus

SHAM MONGA AND ANR                                      ..... Defendants
             Through               None (defendants already ex parte)

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

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

2. To be referred to Reporter or not?                                Yes

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

MANMOHAN SINGH, J. (ORAL)

1. The plaintiff, Smt. Sumitra Devi Monga has filed the present suit

for perpetual injunction with the following prayer:-

"A. Pass a decree of mandatory injunction directing the defendants to withdraw from the public land in the vicinity of the plaintiff's residential house.

B. Decree of perpetual injunction restraining the defendants from occupying the public land just outside the door of the plaintiff and from hindering and preventing the free

use and enjoyment of the suit property of the plaintiff and her family members."

2. The case of the plaintiff is that the plaintiff is the sole owner of

the plot of land with bungalow constructed thereof, bearing No.B-62B,

Kalkaji, New Delhi. Defendant No.1 is the son of the plaintiff and

defendant No.2 is her daughter-in-law. It is averred in the plaint that the

said property was purchased by the late husband of the plaintiff, Shri Ram

Lal Monga from out of his self-acquired funds by virtue of sale deed dated

22.10.1975. Shri Ram Lal Monga expired on 23.09.1981 inte-state leaving

behind the following legal heirs:-

             (i)     Sumitra Devi Monga         -          wife
             (ii)    Sham Monga                 -          Son
             (iii)   Gulshan Monga              -          Son
             (iv)    Sudha Diwan                -          Daughter
             (v)     Kamal Monga                -          Daughter

Thereafter, all the legal heirs of late Shri Ram Lal Monga relinquished their

share in favour of their mother, i.e. the plaintiff. The said Relinquishment

Deed was executed and duly registered on 25.03.1986. The title of the

property in question was also transferred in the name of the plaintiff and

entries in this regard were recorded by virtue of communication issued on

07.08.1986. All the legal heirs including defendant No.1 gave their express

consent to have the plaintiff being recorded as the owner of the suit

property.

3. It is further averred in the plaint that by virtue of the family

settlement dated 30.08.1990, the defendants vacated the suit property and in

consideration of giving up all rights in the suit property, the other son of the

plaintiff, namely, Mr. Gulshan Rai Monga agreed to sell a plot of land

owned by him, bearing No.757, Sector-21, Faridabad (Haryana) and use the

sale proceeds in purchasing a residential premises for the benefit of the

defendants. Mr. Gulshan Rai Monga, the other son of the plaintiff, kept his

promise of selling the said plot of land at Faridabad and utilizing the sale

proceeds for purchasing a residential apartment for his brother, i.e.

defendant No.1 who then along with defendant No.2 began to reside in the

said residential apartment. A further sum of Rs.3 lac was paid to defendant

No.1 by Mr. Gulshan Rai Monga from the business known as Monga Paint

House, HS 23, Kailash Colony, New Delhi and thereafter, in the year 1996

the said firm was dissolved and defendant No.1 ceased to have any right,

title or interest in the said firm.

4. The case of the plaintiff against the defendants is that despite of

above, the defendants are still demanding for a share in the suit property,

and the defendants along with their two minor children, moved some

household goods on to a public road and started blocking the rear entrance

of the house where the plaintiff resides along with her younger son and his

family. With effect from 30.04.2009, the defendants started camping on the

road and just outside the road leading to the plaintiff's house. Not only

that, they also started shouting and abusing the plaintiff in foul language

while sitting at the front side of the home of the plaintiff. This led to the

plaintiff to file the present suit. However, prior to the filing of the present

suit, the plaintiff had also lodged a complaint to the concerned police

station on 02.05.2009.

5. Along with the suit, the plaintiff filed an interim application

bearing I.A. No.6499/2009 and the Court after considering the contention

of the plaintiff, passed an ex parte ad-interim order restraining thereby the

defendants from causing obstruction to the ingress and egress of the

plaintiff and her family members. The said interim order is still continuing.

6. It appears from the record that despite of service of summons

and notice and also having sought the time to file the written statement, the

defendants neither filed the written statement, nor appeared subsequently

before the Court after the hearing of 04.02.2011. Hence, they were

proceeded ex parte vide order dated 18.08.2011.

7. The plaintiff, in support of her case, has adduced evidence by

way of three affidavits, namely, the plaintiff herself as PW-1, Mr. Gulshan

Rai Monga as PW-2 and Mr. Pawan Goswami who is the neighbour of the

plaintiff as PW-3.

8. The statements made in the affidavits filed in terms of the

evidence are almost the same as the contentions raised in the plaint. The

plaintiff herself appeared as PW-1 and has proved on record the sale deed

dated 22.10.1975 which is Ex.PW1/A, copy of the Relinquishment Deed as

Ex.PW1/B, the family arrangement/settlement which is marked as

Ex.PW1/C, copy of dissolution of Partnership Deed as Ex.PW1/D which

bears the signatures of both of her sons, copy of complaint filed before the

police authorities as Ex.PW1/E and the mutation document in respect of the

suit property as Ex.PW1/F. Similarly, PW-2 has also confirmed the

statement made by PW-1. PW-3 who is the neighbour of the plaintiff has

also stated that he has seen/witnessed the obstruction created by the

defendant for user and ingress and egress of the plaintiff in the suit

property. He also deposed that on 30.04.2009 the defendants along with

their children began to camp just outside the door of the plaintiff on public

land along with their luggage into the said public land. It is also stated that

the defendants were using abusive language outside the suit property which

was causing nuisance in the said locality.

9. It appears from the record that the evidence produced by the

plaintiff has gone unrebutted as the defendants failed to cross-examine the

witness. No written statement has been filed by the defendant. The learned

counsel for the plaintiff also submits that at present the defendants are

residing in a DDA Flat at Kalkaji. Under these circumstances, the plaintiff

has been able to make out a case against the defendants and is entitled for a

decree of mandatory injunction. Hence, it is directed that the defendants

are restrained permanently from occupying the public land just outside the

door of the house of the plaintiff and from hindering and preventing the

free use and enjoyment of the suit property of the plaintiff and her family

members. The suit of the plaintiff is accordingly decreed. However, there

is no order as to costs. A decree be drawn accordingly.

MANMOHAN SINGH, J.

OCTOBER 31, 2011/ka