Sanatan Dharam Mandir Sabha ... vs Subash Kapoor
2014 Latest Caselaw 3300 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Order delivered on: July 23, 2014

+                        CS(OS) No. 2343/2011

SANATAN DHARAM MANDIR SABHA (REGD) & ORS. .... Plaintiffs
                Through Mr. Rajeev Aneja, Advocate

                         versus

SUBASH KAPOOR                                            .....Defendant
                         Through        Defendant is ex-parte

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. The plaintiffs have filed a suit for seeking relief of possession, mesne profits/damages and permanent injunction against the defendant in respect of property bearing House No.160, Nimri Colony, Phase-1 near Ashok Vihar Phase IV, Delhi- 110052 (hereinafter referred to as the "suit property").

2. Brief facts of the case are that the plaintiffs No. 1 to 3 are the legatees/beneficiaries of the Will dated 10th July, 1998 made by Late Sh. Om Prakash Kapoor, who died on 8th February, 2000 and plaintiff No.4 is the executor of the said Will and as per the stipulation of the said Will, the plaintiffs No.1 to 3 together have inherited the movable and immovable properties of the deceased late Sh. Om Prakash Kapoor, including the suit property. The said Will/testament dated 10th July, 1998 was probated on 16th October, 2006 and was later

modified by this Court vide order dated 29th August, 2008 in FAO No. 364-65/2006 wherein the property bearing No. 24-C, Taimur Nagar, Delhi was excluded from the purview of the Will and the plaintiffs No.1 to 3, were allowed to succeed/inherit the properties of the deceased.

3. During his lifetime, Late Sh. Om Prakash Kapoor had no son or daughter and his wife had predeceased him. The only near relatives were his sister-in-law i.e. sister of his wife and children of his maternal uncle, who were clearly excluded from the movable and immovable properties owned and possessed by the deceased at the time of his death by way of the said Will.

4. It is the case of the plaintiffs that one Sh. Yogi Raj Kapoor and Smt. Raj Dulari Kapoor along with her husband and son, had occupied the suit property at the time of the death of the deceased and were therefore, shown as near relatives in the probate petition filed by plaintiff No.4. Later, they had filed their objections to the probate petition however, Sh. Yogi Raj Kapoor did not appear nor did he file any objections to the said probate petition. Subsequently, probate was granted in favour of the plaintiffs through the executor Sh. Jaswant Lal Aneja i.e. plaintiff No.4. Aggrieved by the said order granting probate, Smt. Raj Dulari Kapoor , her husband Sh. Madan Lal Kapoor and son Sh. Shiv Kapoor filed petition being FAO No.364-65/2006 wherein Sh. Yogi Raj Kapoor was impleaded as a party as respondent No.3. However, Yogi Raj Kapoor again did not appear. The plaintiffs filed an application before the trial court

wherein the probate was modified vide order dated 5th March, 2011 in view of the judgment in FAO No.364-65/2006.

5. It is also stated that the 2 brothers namely, Sh.Yogi Raj Kapoor and Sh. Subash Kapoor were hand in glove with each other and Sh. Subash Kapoor now claimed to be in possession of the suit property which was earlier in possession of Sh. Yogi Raj Kapoor. The portion of the suit property which was in possession of Smt. Raj Dulari Kapoor was also trespassed by the defendant.

6. It is stated that the defendant failed to vacate the suit property and continued to be in its wholly, unauthorized and illegal occupation and is trying to sell the same which came to the knowledge of the plaintiffs from the local property dealers in August, 2011.

7. The suit was listed before this Court on 21st September, 2011 when summons were issued to the defendant in the suit.

8. Despite appearance of counsel on behalf of the defendant on 28th November, 2011 and repeated opportunities, neither the written statement has been filed till date nor is application for seeking condonation of delay in filing the written statement on record and consequently the defendant was proceeded ex-parte vide order dated 16th October, 2012.

9. The plaintiff filed its affidavit of evidence dated 15th July, 2013 and proved the facts stated in the plaint by evidence by way of affidavit of Mr.Jaswant Lal Aneja, plaintiff No.4 as PW1 and also by certain documents exhibited as Ex. PW1/1 to Ex. PW 1/10 in support of its case. The same are as follows:-

 Site plan of the suit property, Ex.PW1/1.

 Copy of the conveyance deed, Ex.PW1/2.

 Certified copy of the Will dated 10th July 1998, Ex.PW1/3.  Certified copy of judgement dated 16th October 2006, Ex.PW1/4.

 Certified copy of the order dated 29th August 2008, Ex.PW1/5.

 Certified copy of the settlement dated 27th August 2008, Ex.PW1/6.

 Certified copy of the application under Order 23 Rule 1 CPC, Ex.PW1/7.

 Certified copy of the Review Petition, Ex.PW1/8.  Certified copy of the order dated 4th December 2009, Ex.PW1/9.

 Certified copy of the order dated 5th March 2011, Ex.PW1/10.

10. It was stated by the plaintiffs that no further evidence was required to be led and accordingly, the ex-parte evidence was closed vide order dated 29th November, 2013.

11. Since evidence filed by the plaintiffs has gone unrebutted as no cross-examination of the plaintiffs' witness was carried out, therefore, the statements made by the plaintiffs are accepted as correct deposition.

12. Under these facts and circumstances, the plaintiffs are entitled for a decree of possession, mesne profits/damages and for permanent injunction in terms of prayer clause of the plaint. The relief

of damages for the period from August, 2008 till the filing of the suit is not being granted as the plaintiffs have not proved the damages in accordance with the law. The relief of damages and other reliefs are rejected in view of peculiar facts of the matter. Decree be drawn accordingly. The suit is disposed of.

13. No costs.

(MANMOHAN SINGH) JUDGE JULY 23, 2014