Sombir Singh Solanki vs Manju & Ors.
2015 Latest Caselaw 8104 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Order delivered on: 28th October, 2015

+              I.A. No.6757/2015 in CS(OS) No.2063/2013

       SOMBIR SINGH SOLANKI                                ..... Plaintiff
                     Through            Mr.P.K. Bhardwaj, Adv.

                         versus

       MANJU & ORS.                                      ..... Defendants
                         Through     Mr.B.K. Srivastava, Adv. for D-1&2

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiff has filed the abovementioned suit for possession, damages/mesne profit against the defendants. The abovementioned application has been filed by the plaintiff under Order XV Rule 1 & 2 CPC as the plaintiff felt no evidence is necessary in the present case in view of the facts available on record.

2. The case of the plaintiff is that he had purchased the property No. RZ-F-41/30, B-III, Gali No.-41, Sadh Nagar- II, Palam Colony, New Delhi-110045, which was constructed on plot No. 31-A, measuring 70 sq. yards, out of Khasra No. 527 (hereinafter referred to as the 'suit property'), from Shri Suraj Tokas, defendant No.3, husband of defendant No.1 by way of registered sale deed being document No. 12759, book No.1 Volume No. 2303 on page No. 81 to 89, which was executed on 19th September, 2005 against valuable consideration. The copy of the sale deed has been placed on record. The terms and conditions of the sale deed indicated that the seller

namely Sh. Suraj Tokas/ defendant No. 3, delivered the vacant physical possession of the suit property to the plaintiff which was taken over by the plaintiff by putting his lock and key itself on 19th September, 2005, in presence of the persons who became the witnesses to the sale deed including Shri Ratan Lal.

3. In view thereof the plaintiff becomes the owner of the suit property and none of the legal heir or successors or family members of the defendant No. 3 have any legal right, title or interest in the suit property, the said condition was also narrated in the sale deed at page No.8, para No.2:-

"That the vendor has been left with no right, title, claim, concerned interest, whatsoever in the said property after execution of this sale deed. Now the vendor, his heirs, successors and assignee has been left with no claim, right or concerned in the said property, hereby conveyed. In case any legal heirs of the vendor come forward and make a claim of the whole property or any portion thereof then his/her/their claim shall be considered as null and void and ineffective"

4. It is alleged in the plaint that after the plaintiff became the owner of the suit property and took over the possession of the suit property, the defendant Nos.1 and 2 trespassed in the suit property on or about 20th September, 2005, by breaking and opening the lock put by the plaintiff on the suit property unauthorisedly and illegally took over the possession of the suit property. When the plaintiff visited the suit property on 20th September, 2005, he found that the lock had been broken and the defendant Nos.1 and 2 were found in possession. However, when the plaintiff made a request to the defendant Nos.1 and 2 to vacate the suit property, they started abusing the plaintiff and refused to vacate the suit property. The plaintiff also made a

complaint to the Police regarding trespass by the defendant Nos.1 and 2 on 20th September, 2005. It is the case of the plaintiff that he made efforts to reconcile the dispute by requesting the respectable persons of the locality to intervene in the matter. The meeting was held in the second week of October, 2005, in the said meeting both the defendant Nos.1 and 2 admitted that their possession in the suit property is illegal but there was no alternative available to them except to take over the possession of the suit property as Shri. Suraj Tokas/defendant No. 3 had sold the suit property to the plaintiff that too without making any alternative arrangement for the family. Therefore, until defendant No.3 would make any arrangement, they would not vacate the suit property.

5. Therefore, the plaintiff sent a legal notice to the defendant Nos.1 and 2 by a registered post as well as UPC with request to vacate the suit property and hand over the peaceful possession of the suit property within 15 days from the receipt of the notice. In the notice it was also made clear that they are also liable to pay damages, mesne profit @ Rs.3,500/- per month with effect from 19th September, 2005 till the handing over of the possession of the suit property.

6. Despite of the receipt of the notice dated 21st October, 2005 the defendant Nos.1 and 2 have neither vacated the suit property nor paid the damages, due to non-compliance of the legal notice, therefore the plaintiff filed the suit under Section 6 of Specific Relief Act.

7. The defendant Nos.1 and 2 along with their children also filed a suit for declaration and permanent injunction on 18th September, 2005, against the defendant No. 3 and Sh. Ratan Lal. Shri Ratan Lal filed written statement to the effect that he had no concern with the suit property or extended threat as alleged, therefore his name was

struck off from the memo of parties and the suit was amended to the extent of impleading the plaintiff as defendant No.2 in the suit. The defendant No.3 also filed the written statement dated 5th October, 2005, with supporting affidavit wherein his residential address was shown as F-82/15, Solanki Chowk, Sadh Nagar, Palam Colony, New Delhi. It was also pleaded by the defendant No.3 that he was residing alone and the defendant Nos.1 and 2 were residing at their parents house at Mangla Puri, for the last nine months prior to sale of the suit property and handed over the peaceful vacant possession to the plaintiff.

8. After making the statement by Shri Ratan Lal Sharma, the defendant Nos.1 and 2 got the suit amended in October 2005, pleading therein that on 26th September, 2005, they came to know from Sh. Ratan Lal that present defendant No. 3 had sold the suit property on 19th September, 2005 to the plaintiff. The defendant No.1 had also filed an application for herself and her children for grant of maintenance under Section 125 Cr.P.C. from the address of her parental house i.e. of Mangla Puri, Palam, New Delhi, before filing of aforesaid suit i.e. C S. No. 268/2005.

9. The suit filed by the defendant Nos.1 and 2 along with their children, bearing C.S. No. 268/2005 was also dismissed in default vide order dated 31st January, 2013 by the court of Senior Civil Judge, Delhi as after closing their evidence, the said defendants did not put appearance.

10. The application under Section 125 Cr.P.C. bearing C.C. No. 160/02 dated 13th September, 2005 filed from the address at B-37, Mangla Puri, Village Palam was also disposed off vide judgment dated 2nd April, 2008, passed by the then Metropolitan Magistrate, New

Delhi. No relief is claimed against the defendant No. 3 but he was impleaded as proforma party being a necessary one. Even later on the plaintiff filed an application being I.A.No. 9873/2015 for deletion of defendant No.3 from the array of parties which was allowed vide order dated 11th May, 2015.

11. It is averred in the plaint that on 3rd September, 2013 the defendant Nos. 1 and 2 extended threat to the plaintiff that as there is no case pending in the court of law, they would transfer the possession of the suit property to the builder/ mussels man and take handsome amount. Thus, there is an apprehension that the defendant Nos. 1 and 2 may create third party interest or part with possession of the suit property.

12. It is admitted by the plaintiff that the suit filed by the plaintiff being suit No. 610/2006 against the defendant Nos.1 and 2 was dismissed by the Civil Judge, Delhi vide order dated 31st August, 2012. Against the said judgment and decree, an appeal was filed which was also withdrawn from the court of ADJ, South West, Dwarka, New Delhi on 3rd September, 2013. Therefore, the present suit has been filed for the recovery of possession, damages and mesne profit.

13. The written statement has been filed by defendant Nos.1 and 2 on 13th May, 2014.

14. The defendant Nos. 1 and 2 in their written statement have opposed the reliefs as prayed in the plaint by stating the following objections:

(i) Earlier suit No. 610/2006 titled as "Sombir Solanki vs. Smt. Manju and Smt. Meera" filed under Section 6 of Specific Relief Act was dismissed by Court of Shri Amit Bansal, SCJ/RC, (West), Tis Hazari, Delhi vide judgment dated 31st August,

2012 which bars the present suit on the ground that the plaintiff has not come with clean hands and has suppressed the material facts and documents.

(ii) The sale deed in question, executed and registered on 19 th September, 2005 is not a complete sale deed, in view of Section 54 and Section 55 (f) of the Transfer of Property Act therefore, the plaintiff cannot be said to have acquired any title to the suit property.

(iii) The suit filed is not maintainable since it is filed against a dead person, Shri Suraj Tokas/defendant No.3, who died on 13th July, 2013 while the present suit was filed on 7th October, 2013.

(iv) The suit has not been properly valued for the purpose of the Court fee and jurisdiction.

15. No doubt, the defendant Nos. 1 and 2 admitted that they are in possession of suit property.

16. The defendants' objection that the suit was filed against a dead person is without merit in the circumstances that no relief against Shri Suraj Tokas defendant No.3 was claimed under the suit. Similarly, the suit is not properly valued.

17. It is submitted by the learned counsel for the plaintiff that the present suit is covered by Section 6(4) of the Specific Relief Act. The judgment in earlier case is under Section 6(1) of the Specific Relief Act and the same does not come under Section 41 or under Section 42 of the Evidence Act and the said judgment under Section 6(1) of the Specific Relief Act is relevant only under Section 13, Section 14 and Section 43 as evidence of transaction or instance where right of possession is claimed. The non obstante clause of Section 6(4)

provides institution of present suit and the instant suit is covered thereby. The defendants' objection that sale deed held by plaintiff is not a complete sale deed is without merit as plaintiff's sale deed has not been put up for challenge, by either of the defendant Nos.1 and 2, within permitted period of limitation and as such challenge to plaintiff's title is not admissible and permissible in present proceedings.

18. It is admitted position that plaintiff earlier filed the suit for possession under Section 6 of the Specific Relief Act being suit No.610/2006 in the court of Senior Civil Judge and the same was dismissed after recording the evidence. The appeal filed by the plaintiff was withdrawn by him where the testimony of PW-4 i.e. plaintiff was declared unworthy of any evidence and it was observed that it cannot be relied upon. It is declared that the plaintiff failed to prove his alleged dispossession on 20th September, 2005. The said finding attained finality. Be that as it may the present suit filed by the plaintiff might be maintainable on the basis of title i.e. executed by defendant No.3 husband of defendant No.1, however I am not inclined to pass the decree for possession at this stage as this Court felt that it is a case of trial. Therefore, without expressing any opinion on merit, the present application is dismissed.

19. No cost.

CS(OS) No.2063/2013 List this matter before Joint Registrar on 5th January, 2016 for further directions.

(MANMOHAN SINGH) JUDGE OCTOBER 28, 2015