Delhi High Court
Lal Pratap Singh vs Smt. Devi & Ors. on 24 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.220/2014 and C.M. No.13877/2014 (stay)
Reserved on: 21st August, 2017
% Pronounced on: 24th August, 2017
LAL PRATAP SINGH ..... Appellant
Through: Mr. Sree Narain Jha, Advocate.
versus
SMT. DEVI & ORS. ..... Respondents
Through: Mr. R.N. Dubey, Advocate for
respondent No.1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J
1. This Regular Second Appeal under Section 100 of Code
of Civil Procedure, 1908 (CPC) is filed by the defendant no.2 in the
suit challenging the judgment of the First Appellate Court dated
5.4.2014. Trial Court vide its judgment dated 11.2.2011 had
dismissed the suit filed by the respondent no.1/plaintiff. Respondent
no.1/plaintiff had filed the suit for declaration and permanent
injunction claiming rights in the suit property bearing no.B-4/55, Nand
Nagri, Delhi. The first appellate court vide its impugned judgment
dated 5.4.2014 has allowed the appeal filed by the respondent
no.1/plaintiff and decreed the suit for one prayer of injunction
restraining the defendants in the suit from raising any objection
against the respondent no.1/plaintiff from carrying on construction in
the suit property and interfering in the use and occupation of the suit
property of the respondent no.1/plaintiff.
2. The facts of the case are that the respondent no.1/plaintiff
filed the subject suit claiming rights in the suit property. Respondent
no.1/plaintiff pleaded that she purchased rights in the suit property
from respondent no.2/defendant no.1/Sh. Kanwar Lal in terms of the
documentation being the agreement to sell, power of attorney, Will,
receipt, affidavit etc dated 24.2.2009 after paying sale consideration of
Rs.4.50 lacs. Respondent no.1/plaintiff pleaded that she has received
vacant possession of the suit property and the respondent
no.2/defendant no.1 had executed a possession letter in favour of the
respondent no.1/plaintiff. The documentation dated 24.2.2009 in
favour of the respondent no.1/plaintiff was preceded by an earlier
agreement to sell dated 19.12.2008 and wherein the respondent
no.2/defendant no.1 had received a sum of Rs.2 lacs from the
respondent no.1/plaintiff. It was further pleaded in the plaint by the
respondent no.1/plaintiff that before the documentation dated
24.2.2009 was executed in her favour by the respondent
no.2/defendant no.1, it was informed to her by the respondent
no.2/defendant no.1 that he had cancelled the earlier documentation
dated 26.3.2001 executed by him in favour of the appellant/defendant
no.2. The documents dated 26.3.2001 executed by the respondent
no.2/defendant no.1 in favour of the appellant/defendant no.2 were got
cancelled inasmuch as the respondent no.2/defendant no.1 pleaded that
the documentation was fraudulently got obtained from him by the
appellant/defendant no.2. As per the plaint, respondent no.1/plaintiff
further pleaded that she started raising construction on the suit
property and the appellant/defendant no.2 illegally interfered with the
same with the assistance of the local SHO who was sued as defendant
no.3 in the suit. Hence the subject suit for declaration and injunction
was filed.
3. The appellant/defendant no.2 contested the suit. He filed
his written statement placing reliance upon the documents dated
26.3.2001 executed by the respondent no.2/defendant no.1 in his
favour and that the said documents were pleaded to be valid
documents. Suit was hence prayed to be dismissed.
4. After pleadings were complete, the trial court framed the
following issues:-
"1. Whether the suit has been properly valued for the
purpose of court fees and jurisdiction? OPP
2. Whether the suit is without cause of action? OPD
3. Whether the plaintiff is entitled for the relief of
declaration as prayed for? OPP
4. Whether the plaintiff is entitled for the relief of
permanent injunction? OPP
5. Relief."
5.(i) The respondent no.1/plaintiff led evidence by filing her
affidavit by way of evidence. She proved her case as also various
documents including the documentation executed in her favour by the
respondent no.2/defendant no.1 on 24.2.2009. Respondent
no.1/plaintiff also deposed that the documentation dated 26.3.2001
was fraudulently obtained by the appellant/defendant no.2 from the
respondent no.2/defendant no.1. Respondent no.1/plaintiff also led
evidence in the form of documents to show that even after 2001, it was
the respondent no.2/defendant no.1 who along with his family resided
in the suit property and thus showing that the documentation of the
year 2001 in favour of the appellant/defendant no.2 were not valid
documents.
(ii) The appellant/defendant no.2 did not lead evidence in spite of
repeated opportunities and ultimately the right of the
appellant/defendant no.2 to lead evidence was closed by the order of
the trial court dated 30.11.2009. Thereafter an application was moved
by the appellant/defendant no.2 for permission to lead evidence but
the same was also dismissed by the trial court vide its order dated
21.1.2010. The order dated 21.1.2010 was challenged before the High
Court but the said petition being C.M.(M) No.1010/2010 was
dismissed by a learned Single Judge of this Court vide order dated
9.8.2010 with costs of Rs.10,000/-.
6. It is therefore seen that whereas respondent no.1/plaintiff
proved her case, the appellant/defendant no.2 led no evidence. In such
circumstances, the first appellate court was hence justified in granting
the relief of injunction to the respondent no.1/plaintiff. I may note that
the respondent no.1/plaintiff by her affidavit by way of evidence
besides proving the documentation dated 24.2.2009 executed in her
favour by the respondent no.2/defendant no.1 as Ex.PW1/1 to
Ex.PW1/8, respondent no.1/plaintiff also proved the ration card
Ex.PW1/9 of the respondent no.2/defendant no.1 showing his address
of the suit property as of 31.7.2005 and thus negating the stand of the
appellant/defendant no.2 that he had ownership rights in the suit
property in terms of 2001 documents and that he had received
possession of the suit property in 2001. The respondent no.1/plaintiff
further proved the water bill Ex.PW1/11 in the name of the respondent
no.2/defendant no.1 dated 18.5.2006 and which water bill again being
in the name of the respondent no.2/defendant no.1 showed that the
appellant/defendant no.2 never got possession in terms of the
documents of the year 2001 relied upon by him. Respondent
no.1/plaintiff also proved the house tax receipt as Ex.PW1/12 issued in
favour of Sh. Ram Kumar, the brother of the respondent
no.2/defendant no.1 with respect to the suit property showing payment
of property tax as on 22.12.2008 and therefore once again showing the
appellant/defendant no.2 not only was not in possession of the suit
property but he took no steps in furtherance of his claim of ownership
of the suit property in terms of the documentation of the year 2001.
On record was also proved the document Ex.PW1/D1 and which was
an election commission identity card of the year 2002 in favour of the
respondent no.2/defendant no.1 showing the address of the respondent
no.2/defendant no.1 as of the suit property in the year 2002 and once
again therefore in terms of the aforesaid reasoning the documentation
relied upon by the appellant/defendant no.2 of the year 2001 was
shown not to have been acted upon.
7. In my opinion therefore the first appellate court has
committed no error in decreeing the suit to the limited extent of the
grant to the respondent no.1/plaintiff of the relief of injunction while
denying the relief of declaration of the cancellation of the documents
dated 26.3.2001. In my opinion, in fact the first appellate court could
have even granted the relief of declaration because the respondent
no.1/plaintiff led evidence and deposed as to 2001 documents being
obtained fraudulently by the appellant/defendant no.2, and she stood
the test of cross-examination, and there was no evidence which was
led on behalf of the appellant/defendant no.2. In any case, I do not
have to go to this aspect further as the respondent no.1/plaintiff is
satisfied with the judgment of the first appellate court which granted
her one relief of injunction and against the defendants, including the
appellant/defendant no.2, protecting her use and occupation of the suit
property and also permitting her to raise construction on the same.
8. No substantial question of law arises. Dismissed.
AUGUST 24, 2017 VALMIKI J. MEHTA, J
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