Delhi High Court
Surendra Nath Pasricha vs Kamla Pasricha & Ors on 15 March, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No. 252/2016
% 15th March, 2018
SURENDRA NATH PASRICHA ..... Plaintiff
Through: Mr. Satvik Verma, Mr.
Lalltaksh Joshi and Mr. Udit
Chauhan, Advocates.
versus
KAMLA PASRICHA & ORS. ..... Defendants
Through: Mr. Jai Sahai Endlaw, Advocate
for D-1 and 2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
I.A No. 6528/2017 (U/o XII Rule 6 CPC filed by the plaintiff)
1. Plaintiff has filed this application under Order XII Rule 6
of the Code Of Civil Procedure, 1908 (CPC) for decreeing of the suit
so far as the relief of possession is concerned with respect to the suit
property which is the first floor and barsati floor of House No. 25/24,
East Patel Nagar, New Delhi.
2. The facts as stated in the plaint are that late Sh. Wazir
Chand Pasricha, who was the father of the plaintiff, was the owner of
CS(OS) No.252/2016 Page 1 of 23
the entire House No.25/24, East Patel Nagar, New Delhi. Sh. Wazir
Chand Pasricha is the father-in-law of defendant no.1 i.e the father of
Sh. Ravinder Nath Pasricha is the late husband of defendant no.1/Smt.
Kamla Pasricha. The defendant no.2 in this suit is Smt. Simmi Nayyar
and who is the daughter of defendant no.1 and late Sh. Ravinder Nath
Pasricha. Defendant no.3 in the suit is Sh. Sandeep Pasricha, the son
of defendant no.1 and late Sh. Ravinder Pasricha. The plaintiff pleads
that Sh. Wazir Chand Pasricha expired on 13.1.1985 but before his
death Sh. Wazir Chand Pasricha had executed a registered Will dated
18.6.1984 whereby life-estate in the suit property being the first floor
and the barsati floor of the property was bequeathed to Sh. Ravinder
Nath Pasricha, the predecessor-in-interest of the defendants. Sh.
Ravinder Nath Pasricha, the predecessor-in-interest since only had a
life-estate, after his death, the suit property being the first floor and the
barsati floor of H.No. 25/24 was to devolve absolutely upon the
plaintiff to the present suit Sh. Surendra Nath Pasricha. In the plaint it
is further pleaded that in terms of the registered Will dated 18.6.1984
of the father, the plaintiff and Sh. Ravinder Nath Pasricha, got mutated
their respective rights in the suit property before the L&DO. Plaintiff
CS(OS) No.252/2016 Page 2 of 23
also pleads the reason for late Sh. Ravinder Nath Pasricha not being
given the suit property on account of late Sh. Ravinder Nath Pasricha
being allotted a plot of 252 sq. yards in a House Building Cooperative
Society for which construction cost was paid by the father Sh. Wazir
Chand Pasricha. It is also pleaded in the plaint that to the
granddaughter Smt. Simmy Nayyar late Sh. Wazir Chand Pasricha had
given a loan to purchase a property where she is presently residing.
For defendant no.1 a property bearing no. 1/13, Ground Floor, Sunder
Vihar, Paschim Vihar, New Delhi was purchased by Sh. Wazir Chand
Pasricha. The plaint makes reference to various earlier litigations
between the parties, but for the purpose of the present application,
specific reference is made to a suit for injunction filed by the plaintiff
for restraining late Sh. Ravinder Nath Pasricha and defendant no.3
herein from using the suit premises for commercial purpose and
parting with possession of the suit property to any other person, and
which reliefs were claimed by placing reliance upon the Will of the
father Sh. Wazir Chand Pasricha dated 18.6.1984. The defendant no.3
in the present suit Sh. Sandeep Pasricha was the defendant no.2 in the
earlier suit for injunction filed, and which suit was numbered as Suit
CS(OS) No.252/2016 Page 3 of 23
No.272/2003 filed in the Court of Civil Judge at Delhi. Plaintiff in the
suit pleads that the Suit No. 272/2003 was decreed in terms of the
judgment dated 24.4.2007 and it was held in that suit that Sh.
Ravinder Nath Pasricha, the defendant no.1 in that suit, and the
predecessor-in-interest of the defendants in this suit, only had a life-
estate in the suit property in view of the bequest made by the Will
dated 18.6.1984, and which Will was proved by the present plaintiff as
the plaintiff in Suit No. 272/2003. Accordingly, it is argued on behalf
of the plaintiff by means of the present application under Order XII
Rule 6 CPC that the issue of title of the plaintiff in the suit premises,
and only of a life-estate of the defendants, predecessor-in-interest Sh.
Ravinder Nath Pasricha, stood finally decided in favour of the plaintiff
in terms of the judgment and decree dated 24.4.2007 in Suit No.
272/2003 decided by the court of Sh. Naresh Kumar Laka, Civil
Judge, Delhi, and therefore it is prayed that by applying the doctrine of
res judicata contained in Section 11 CPC the plaintiff be forthwith
granted decree of possession of the suit property leaving the issue of
determination of mesne profits during the course of trial in the present
suit.
CS(OS) No.252/2016 Page 4 of 23
3. Two written statements have been filed in this suit. One
written statement is filed by the defendant no.1 and the other written
statement is filed by defendant no.2. Defendant no.3 has not contested
the suit and he has been proceeded ex-parte. Both the written
statements have been filed by the same counsel who has today argued
the application under Order XII Rule 6 CPC filed by the plaintiff. It is
not disputed on behalf of the defendant nos. 1 and 2 either in the
written statement or during the course of arguments before this Court
that there is in fact a judgment dated 24.4.2007 passed by the court of
Sh. Naresh Kumar Laka, Civil Judge, Delhi in Suit No. 272/2003,
however it is argued by the counsel for defendant nos. 1 and 2 that the
said earlier judgment will not operate as res judicata against the
defendant nos. 1 and 2 because the earlier suit was a simplicitor suit
for injunction and in such a suit for injunction title of the suit property
could not have been decided. Reliance in support of the arguments by
the defendant nos. 1 and 2 is placed upon a judgment of the Supreme
Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead)
by Lrs and Others (2008) 4 SCC 594, sub-para (c) of para 21 of the
said judgment, which holds that in a suit for injunction issue of title
CS(OS) No.252/2016 Page 5 of 23
could not have been decided, and therefore defendant nos. 1 and 2
argue that the judgment dated 24.4.2007 will not operate as res
judicata between the parties, though defendants no.1 and 2 are
admittedly legal heirs of Sh. Ravinder Nath Pasricha who was the
defendant no.1 in the Suit No. 272/2003. As already stated above,
defendant no.3 in this suit Sh. Sandeep Pasricha was the defendant
no.2 in the earlier suit. Of course, defendant no.3 is strategically not
appearing in this suit because defendant no.3 was very much a party-
defendant no.2 to the earlier Suit No. 272/2003 and which was
decided against this defendant no.3 and his father Sh. Ravinder Nath
Pasricha, who is also the predecessor-in-interest of the defendant nos.
1 and 2.
4. In order to decide this application, let me reproduce
hereinafter the issues which were framed in Suit No. 272/2003 and the
findings rendered on the relevant issue nos. 1, 3, 5 and 7 in terms of
the judgment dated 24.4.2007. The issues framed and the findings on
the relevant issues read as under:-
"1. Whether the defendant No.1 has inherited only a limited right in
the suit property i.e. first and barsati floor in premises No.25/24,
East Patel Nagar, by Will dated 18.06.1984? OPP
CS(OS) No.252/2016 Page 6 of 23
2. Whether the defendants are threatening illegally to part with
possession of suit premises and are threatening to misuse it by
commercial user? OPP
3. Whether the defendant No.1 is absolute owner of suit property and
the plaintiff has no locus standi? OPD
4. Whether the suit is mala fide, if so, its effect? OPD
5. Whether the defendant is stopped from challenging the Will dated
18.06.1984 by his conduct and admission? OPP
Two additional issues were framed as under:
6. Whether the suit for Perpetual Injunction is hit by section 38 of the
Specific Relief Act or on the ground that the defendant No.2 has
already filed a suit for declaration in the High Court for the same
property? OPD
7. Whether the suit property is joint family property and defendant
no.2 being son of defendant No.1 is within his right to carry on
business in the suit premises, forming part of JHF? OPD"
Findings on Issues
"Issue No.1: Whether the defendant No.1 has inherited only a limited right
in the suit property i.e. first floor and barsati floor in premises No.25/24,
East Patel Nagar, by Will dated 18.06.1984.
The onus to prove this issue was on the plaintiff. PW-5, the summoned
witness from the Office of Sub-Registrar I, has duly proved the Will
Ex.PW5/1. He deposed that he has seen the original Will and the same is
correct. PW2 has also identified the signature of her father on the Will. No
cross-examination of these two witnesses was done. PW-4, the attesting
witness of the Will, has also deposed that the said Will was executed and
signed in his presence. In his cross-examination, nothing contradictory
came out. Thus, I am of the opinion that the Will is duly proved and
executed by Shri Wazir Chand Pashricha on 18.6.1984. The relevant
portion of the Will reads as under:
"The ground floor of the aforesaid house will be inherited by my
younger son Sh. Surendra Nath Pasricha (plaintiff) absolutely forever
and after him to his heirs.
The first floor and the barsati of the aforesaid property shall vest in
favour of my elder son Sh. Ravinder Nath Pasricha (defendant No.1)
till his life time but he shall have no right to alleviate, transfer, change
mortgage, sell or dispose of or part with the possession of the said
portion. After his death the said portion will not devolve on his heirs
and this portion will then devolve absolutely and forever to my
younger son Sh. Surendra Nath Pasricha (Plaintiff) or his heirs."
Therefore, in view of the aforesaid specific clauses of the Will, I am of the
opinion that the defendant No.1 has only limited lifetime right in respect of
the portion, as mentioned in the Will, in the suit property. As such, the
issue is decided in favour of the plaintiff and against the defendants.
CS(OS) No.252/2016 Page 7 of 23
Issue No.3: Whether the defendant No.1 is absolute owner of suit property
and the plaintiff has no locus standi.
The onus to prove this issue was on the defendant no.1. The defendant
no.1 has not examined himself nor produced any evidence. On the other
hand, the plaintiff has succeeded in proving that the property in question
was the self-acquired property of father of the plaintiff and the defendant
no.1. In the cross-examination of DW2, the witness admitted that his grand
father (father of the plaintiff) was a teacher in West Pakistan. As regards
the contribution of fund by the defendant no.1, the DW-2 shows his
ignorance. The plaintiff has already proved the Will and as per clauses
mentioned in the Will, the defendant no.1 has only lifetime interest in the
suit property. As regards, the locus standi, it is the plaintiff who will
succeed to the rights of the defendant no.1 after his death. Therefore, the
plaintiff has locus standi to institute this suit. Therefore, this issue is
decided against the defendant no.1 and in favour of the plaintiff.
Issue No.5 Whether the defendant is estopped from challenging the Will
dated 18.06.1984 by his conduct and admission?
The onus to prove this issue was on the plaintiff. The plaintiff has proved
the mutation letter Ex.PW6/4, Affidavit Ex.PW-6/5 which were written by
the defendant no.1. In the affidavit, the defendant no.1 has himself stated
that the Will is genuine and should be acted upon. In the plaint Ex. PW-
1//6 and the possession letter Ex. PW1/10, there are specific admissions
regarding the execution of Will. Thus, once the defendant has acted upon
the said Will for the purposes of mutation, etc., he cannot subsequently
take the contradictory stand that the Will is a forged document. The
defendant is estopped from disputing the contents of the Will on the
ground of ignorance of some of the clauses of the Will. The defendant
cannot be allowed to claim his right in the property on the basis of Will
and at the same time disputing some of the clauses of the Will. Apart from
this, the defendant no.1 has not led any evidence to clarify/explain such
inconsistent stands. Therefore, the issue is decided against the defendants
and in favour of the plaintiff.
Additional Issues
Issue No.7 Whether suit property is joint family property and the
defendant no. 2 being son of defendant no. 1 is within his right to carry on
business in the suit premises, forming part of JHF?
The onus to prove this issue was on the defendants. The defendant no.2
has not led any evidence to prove that the suit property is the Joint Hindu
Property. On the other hand, PW-2 deposed that the suit property was the
self acquired property of her father and no funds flowed either from the
ancestors or the legal heirs. She was not cross-examined. The plaintiff has
further proved that suit property is a residential house and the same cannot
be used for purposes other than residence. PW-6 has proved Ex. PW6/1 to
CS(OS) No.252/2016 Page 8 of 23
Ex. PW-6/5 which depict that the suit property is a residential property.
PW-6 has not been cross-examined. Moreover, the defendant no.2 has
failed to lead any evidence that defendant no.2 is within his right to carry
on the business being son of the defendant no.1. The DW-2 has even
admitted that his grand father was employed as a Teacher in West
Pakistan. As regards the construction of the suit property, the witness
shows his ignorance. DW-2 has not brought anything on record/evidence
regarding the contribution made by his father and his two sisters. The issue
is thus decided against the defendants." (underlining added)
5. It is also required at this stage to be noted that an appeal
was filed by Sh. Ravinder Nath Pasricha against the judgment dated
24.4.2007 in Suit No. 272/2003, but this appeal was dismissed by the
appellate court as not maintainable in terms of judgment dated
12.5.2010. Certified copy of the judgment of the appellate court has
been filed by the plaintiff.
6. In my opinion, the issue with respect to the predecessor-
in-interest of the defendants being only the owner of a life-estate in the
suit property, being the first floor and the barsati floor of the property
no. 25/24, East Patel Nagar, New Delhi, stands concluded in terms of
the judgment dated 24.4.2007 inasmuch as the issue of title to the suit
property was very much framed and decided by the judgment dated
24.4.2007. The judgment dated 24.4.2007 operates as res judicata
against the defendant no.3 in this suit who has not appeared and this
judgment also operates as res judicata against defendant nos. 1 and 2
CS(OS) No.252/2016 Page 9 of 23
as defendant nos. 1 and 2 are claiming their rights in the suit property
through the predecessor-in-interest Sh. Ravinder Nath Pasricha who
was the defendant no.1 in the Suit No. 272/2003. Clearly therefore the
issue as to title with respect to the suit property stands decided and
concluded in terms of the judgment dated 24.4.2007 passed by the
court of Sh. Naresh Kumar Laka, Civil Judge, Delhi.
7.(i) I would also like to note that the admitted position as per
the pleadings which appear in the present suit is that certain earlier
litigations were also initiated by Sh. Ravinder Nath Pasricha being
Suit No. 161/1990 filed in this Court and thereafter transferred to
District Court pleading a cause of action that the Will dated 18.6.1984
executed by Sh. Wazir Chand Pasricha is void, but this suit was
dismissed by the Court of Sh. S.C. Rajan, ADJ, Delhi vide his order
dated 31.1.2001. This aspect of dismissal of the suit filed by Sh.
Ravinder Nath Pasricha challenging the Will dated 18.6.1984 of Sh.
Wazir Chand Pasricha is stated in para 9 of the plaint and in the
written statement of defendant no.2 in para 9 it is stated that this is a
matter of record.
CS(OS) No.252/2016 Page 10 of 23
(ii) It is also noted that the defendant no.3 herein, and who was the
defendant no.2 in the earlier Suit No. 272/2003, had filed a Suit No.
252/1990 in this Court that the property no. 24/25, East Patel Nagar,
New Delhi was a Joint Hindu Family property, but after issues were
framed in this suit, this suit was dismissed in default on 21.5.1999.
Certified copy of the order dated 21.5.1999 dismissing the suit in
default on account of non-leading of evidence by the plaintiff in the
suit, is on record of the present suit and is filed along with the list of
documents by the plaintiff dated 17.10.2016.
8. It is therefore seen that late Sh. Ravinder Nath Pasricha,
predecessor-in-interest of the defendants, relied upon the Will of the
father Sh. Wazir Chand Pasricha dated 18.6.1984, got the suit property
mutated in his name, and therefore he took benefit under the Will
dated 18.6.1984 of Sh. Wazir Chand Jain. It is for this reason that late
Sh. Ravinder Nath Pasricha as defendant no.1 in the earlier Suit
No.272/2003 was held to be estopped from questioning the validity of
the registered Will dated 18.6.1984 executed by his father Sh. Wazir
Chand Pasricha. Also, in the earlier Suit No. 272/2003 it has been held
that the Will of Sh. Wazir Chand Pasricha dated 18.6.1984 stands duly
CS(OS) No.252/2016 Page 11 of 23
proved on account of deposition of the attesting witnesses to the Will.
Clearly therefore Sh. Ravinder Nath Pasricha, the predecessor-in-
interest of the defendants in the present suit, only had a life-estate in
the suit property being the first floor and the barsati floor of property
no. 25/24, East Patel Nagar, New Delhi. Since Sh. Ravinder Nath
Pasricha had already expired, the suit property will therefore vest with
the plaintiff as an absolute owner in terms of the Will of the father Sh.
Wazir Chand Pasricha dated 18.6.1984 and so already held in the
judgment dated 24.4.2007 in Suit No.272/2003.
9. Reliance placed by the defendant nos.1 and 2 upon the
judgment of the Supreme Court in the case of Anathula Sudhakar
(supra) is misplaced because in fact sub-para (c) of para 21 of this
judgment which is relied upon goes against the defendant nos. 1 and 2
and does not support the arguments of the defendant nos. 1 and 2. The
ratio of the judgment of the Supreme Court in the case of Anathula
Sudhakar (supra) that a simplicitor suit of injunction where title is not
in issue, would not operate as res judicata with respect to the issue of
title, however it is also held in that judgment that once the issue of title
is very much in issue, is framed, and decided, in the suit for
CS(OS) No.252/2016 Page 12 of 23
injunction, and which can be done because issue of title can be raised
or arises in a suit for injunction, then that decision of title in a suit for
injunction will operate as res judicata. I have also similarly held by
incorporating the relevant observations of the Supreme Court of para
21 in the case of Anathula Sudhakar (supra), in the judgment decided
by this Court in the case titled as Naseema Begum Vs. Mohd. Javed
& Ors. decided on 27.7.2017 in RSA No. 191/2017. Relevant paras of
the judgment of this Court in Naseema Begum (supra) are paras 5 and
6 and these paras read as under:-
"5(i). Learned counsel for the appellant/defendant argued that the suit for
injunction was not maintainable and relied upon the judgment passed by
this Court in the case of Lakhmi Chand and Ors. Vs. Karan Singh and
Anr., in RSA No. 346/2015 decided on 5.10.2016. It is argued that the
judgment in Lakhmi Chand (supra) relies upon the judgment of the
Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy
(Dead) by LRs. and Others (2008) 4 SCC 594 and therefore it must be
held that simplicitor suit for injunction without filing a suit for declaration
of title by the respondents/plaintiffs is not maintainable.
(ii) I cannot agree with the argument urged on behalf of the
appellant/defendant, inasmuch as, in the case of Lakhmi Chand (supra)
the plaintiff claimed injunction from being dispossessed from the suit
property, and there were serious questions of title which were in issue and
parties went to trial on this issue, as also whether the plaintiff was or was
not in possession. This Court in the case of Lakhmi Chand (supra) gave a
finding that the defendant in the suit was found in possession and not the
plaintiff and therefore held that injunction could not be granted to the
plaintiff in the suit. This Court in the case of Lakhmi Chand (supra)
while relying upon the judgment in the case of Anathula Sudhakar
(supra) has held that once the plaintiff is not in possession there did not
arise issue of grant of injunction to such a plaintiff from being
dispossessed.
(iii) This Court also held in Lakhmi Chand's case (supra) by placing
reliance upon the ratio of the judgment of the Supreme Court in the case of
Anathula Sudhakar (supra) that where the parties proceeded on the basis
of title being in issue and accordingly the case is contested by leading
evidence by the respective parties then the issue of title is very much in
issue and can be decided by the civil court. The relevant observations of
the judgment in the case of Lakhmi Chand (supra) are contained in paras
5 to 9 and which paras read as under:-
5. The relevant issue which is called upon for decision as per the
arguments urged on behalf of the parties before this Court is the issue
no.5. Issue no.5 is the issue with respect to entitlement of the
appellants/plaintiffs for injunction with respect to the suit property and
which head of injunction would have within its hold two ingredients,
one as to whether the appellants/plaintiffs are the owners of the suit
property and second as to whether the appellants/plaintiffs are in
possession of the suit property as on the date of the suit. It is these two
ingredients and aspects which are called for decision in the present
Regular Second Appeal.
6. Before turning to these two aspects to be decided, the law with
respect to grant of injunction, pleading possession and ownership of an
immovable property, is required to be noted and which is exhaustively
stated in the judgment of the Supreme Court in the case of Anathula
Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others (2008) 4
SCC 594, and the relevant paras of which judgment are paras 13 to 21,
and the same read as under:-
xxxxx xxxxx xxxxx
17. There is some confusion as to in what circumstances the
question of title will be directly and substantially in issue, and in
what circumstances the question of title will be collaterally and
incidentally in issue, in a suit for injunction simpliciter.
In Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar
Temple v. Rajanga Asari Madras High Court considered an appeal
arising from a suit for possession and injunction. The defendant
contended that the plaintiff had filed an earlier suit for injunction
which was dismissed, and therefore the plaintiff was precluded
from agitating the issue of title in the subsequent suit, being barred
by the principle of res judicata. It was held that the earlier suit was
only for an injunction (to protect the standing crop on the land) and
the averments in the plaint did not give rise to any question
necessitating denial of plaintiff's title by the defendant; and as the
earlier suit was concerned only with a possessory right and not
title, the subsequent suit was not barred. There are several
decisions taking a similar view that in a suit for injunction, the
question of title does not arise or would arise only incidentally or
collaterally, and therefore a subsequent suit for declaration of title
would not be barred.
18. On the other hand, in Sulochana Amma v. Narayanan Nair
this Court observed that a finding as to title given in an earlier
injunction suit, can operate as res judicata in a subsequent suit for
declaration of title. This was on the premises that in some suits
for injunction where a finding on possession solely depended
upon a finding on the issue of title, it could be said that the
issue of title directly and substantially arose for consideration;
and when the same issue regarding title is put in issue, in a
subsequent title suit between the parties, the decision in the earlier
suit for injunction may operate as res judicata. This Court
observed: (SCC p.20, para 9)
"9. Shri Sukumaran further contended that the remedy of
injunction is an equitable relief and in equity, the doctrine of
res judicata cannot be extended to a decree of a court of limited
pecuniary jurisdiction. We find no force in the contention. It is
settled law that in a suit for injunction when title is in issue for
the purpose of granting injunction, the issue directly and
substantially arises in that suit between the parties. When the
same issue is put in issue in a later suit based on title between
the same parties or their privies in a subsequent suit the decree
in the injunction suit equally operates as res judicata."
This was reiterated in Annaimuthu Thevar v. Alagammal.
19. This Court in Sajjadanashin Sayed Md. B.E. Edr. v. Musa
Dadabhai Ummer (at SCC pp.362-63, para 24) noticed the
apparent conflict in the views expressed in Vanagiri and
Sulochana Amma and clarified that the two decisions did not
express different views, but dealt with two different situations, as
explained in Corpus Juris Secundum (Vol.50, para 735, p.229):
"Where title to property is the basis of the right of possession, a
decision on the question of possession is res judicata on the
question of title to the extent that adjudication of title was
essential to the judgment; but where the question of the right to
possession was the only issue actually or necessarily involved,
the judgment is not conclusive on the question of ownership or
title."
xxxxx xxxxx xxxxx
21. To summarise, the position in regard to suits for prohibitory
injunction relating to immovable property, is as under:
(a) Where a cloud is raised over plaintiff's title and he does not
have possession, a suit for declaration and possession, with or
without a consequential injunction, is the remedy. Where the
plaintiff's title is not in dispute or under a cloud, but he is out of
possession, he has to sue for possession with a consequential
injunction. Where there is merely an interference with plaintiff's
lawful possession or threat of dispossession, it is sufficient to sue
for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with
possession, normally the issue of title will not be directly and
substantially in issue. The prayer for injunction will be decided
with reference to the finding on possession. But in cases where de
jure possession has to be established on the basis of title to the
property, as in the case of vacant sites, the issue of title may
directly and substantially arise for consideration, as without a
finding thereon, it will not be possible to decide the issue of
possession.
(c) But a finding on title cannot be recorded in a suit for
injunction, unless there are necessary pleadings and appropriate
issue regarding title (either specific, or implied as noticed
in Annaimuthu Thevar). Where the averments regarding title are
absent in a plaint and where there is no issue relating to title, the
court will not investigate or examine or render a finding on a
question of title, in a suit for injunction. Even where there are
necessary pleadings and issue, if the matter involves complicated
questions of fact and law relating to title, the court will relegate the
parties to the remedy by way of comprehensive suit for declaration
of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and
appropriate issue relating to title on which parties lead evidence, if
the matter involved is simple and straight-forward, the court may
decide upon the issue regarding title, even in a suit for injunction.
But such cases, are the exception to the normal rule that question
of title will not be decided in suits for injunction. But persons
having clear title and possession suing for injunction, should not be
driven to the costlier and more cumbersome remedy of a suit for
declaration, merely because some meddler vexatiously or
wrongfully makes a claim or tries to encroach upon his property.
The court should use its discretion carefully to identify cases where
it will enquire into title and cases where it will refer to plaintiff to a
more comprehensive declaratory suit, depending upon the facts of
the case." (emphasis is mine)
7. A reading of the aforesaid paragraphs of the judgments of the
Supreme Court in Anathula Sudhakar's case (supra) shows that a
person who is in possession can protect his possession against the
world at large except the true owner. As against the true owner the
equitable remedy of injunction is not to be granted in favour of a
plaintiff who is not in lawful possession. In a suit where a plaintiff
only claims injunction, but where title of a plaintiff is seriously
disputed and which requires examination of complex questions of law
and facts, then a simplicitor suit for injunction will not lie and it would
be necessary for the plaintiff to seek a declaratory relief with respect to
the ownership of the suit land before seeking injunction with respect
thereto. The Supreme Court has also however held that if a suit is
simplicitor for injunction but the parties proceed on the basis of title
itself being in issue and accordingly the case is contested by leading
evidence by the respective parties, then in such a case the simplicitor
suit for injunction can be said to include the aspect of title which has to
be decided. Thus, in any suit for injunction filed with respect to an
immovable property where title of the suit property is disputed, courts
have to examine the aspect of title which is directly in issue and it is
only if the plaintiff is found to have title to the suit property, only then
the plaintiff will be entitled to injunction, of course provided that the
plaintiff is also found to be in actual physical possession of the suit
property at the time of filing of the suit.
8. So far as the aspect of title is concerned in the present case,
counsel for the appellants/plaintiffs has conceded that the
appellants/plaintiffs have not proved their title to the suit property, and
therefore, the appellants/plaintiffs are seeking relief only on the basis
of their settled and lawful possession of the suit property. I may note
that even if the title was in issue as the issue no.5 covers it and parties
have led evidence on the issue of title, it is seen that
appellants/plaintiffs have led no documentary evidence whatsoever to
show their ownership/title of the suit land. Obviously, oral testimony
cannot confer ownership/title of the suit land on the
appellants/plaintiffs and appellants/plaintiffs had necessarily to prove,
ordinarily by unimpeachable documentary evidence, that the suit
property fell to the share of their grandfather Sh. Chhajan on there
being an oral partition and from which Sh. Chhajan the
appellants/plaintiffs have inherited the suit property being his
grandsons. The only document which was filed by the
appellants/plaintiffs was a revenue record of the year 1977-78, and
which document was never proved because this document was only a
photocopy and not a certified copy of the revenue record of 1977-78.
This document has not been exhibited but is only marked as Mark A
even in the affidavit by way of evidence filed on behalf of the
appellants/plaintiffs of their witness PW-1/Sh. Raghbar Singh/plaintiff
no.2. Even for the sake of arguments, if we take the revenue record of
1977-78 as proved and exhibited document, it is seen that even in this
document, the title of the suit land is admittedly shown to be of Smt.
Fatto mother of the respondent no.1/defendant no.1 and there is no
ownership shown of the suit property of the appellants/plaintiffs or
their predecessors-in-interest/ancestors. Therefore, it is clear that
appellants/plaintiffs have miserably failed to prove their title to the suit
land. Once appellants/plaintiffs failed to prove their title to the suit
land, no relief of injunction can be granted holding that the
appellants/plaintiffs are the owners of the suit land, and in fact, in view
of the paras of the judgment in Anathula Sudhakar's case (supra)
quoted above, injunction cannot be granted in favour of a
person/plaintiff to protect his possession if such person is in wrongful
possession, and therefore, injunction cannot be granted to a person in
unlawful possession and against a rightful owner, and this is because
injunction is a discretionary relief and cannot be granted to an illegal
occupant. Therefore, once appellants/plaintiffs have miserably failed
to prove their title to the suit land, firstly they are not entitled to any
injunctive relief by declaring that the appellants/plaintiffs are the
owners of the suit property and secondly the appellants/plaintiffs
cannot also be granted injunction against the respondent
no.1/defendant no.1 who not only is the owner of the suit property as
discussed below, but also that respondent no.1/defendant no.1 is found
to be in possession of the suit land and not the appellants/plaintiffs.
6. Therefore, in my opinion, the argument of the appellant/defendant
is misconceived that the suit for injunction as claimed is not maintainable
because parties in this case proceeded on the basis that title was in issue
and thus the respondents/plaintiffs had proved the gift deed Ex. PW1/2."
(emphasis added)
10. For completing narration I would like to note that counsel
for the defendant nos. 1 and 2 has relied upon an interim order dated
7.9.1992 passed in Suit No. 161/1990 passed by this Court in the suit
titled as Ravinder Nath Pasricha Vs. Surender Nath Pasricha
whereby an application under Order XII Rule 6 CPC filed by the
present plaintiff who was the defendant in that suit was dismissed,
however I fail to understand as to how an interim order passed in a
suit can have any legal effect once the suit itself was in fact dismissed
and as stated in para 9 of the present suit plaint. Obviously, interim
orders do not confer rights on the parties and rights are conferred on
the parties only in terms of final judgment passed in a suit and which
will only then operate as res judicata between the parties.
11. In my opinion, the arguments urged on behalf of the
defendant nos. 1 and 2 of the judgment dated 24.4.2007 in Suit No.
272/2003 not operating as res judicata because issue of title could not
have been decided in a suit for injunction, is an argument which flies
in the face of the existence and the language of Section 11 CPC. By
virtue of Section 11 CPC a judgment passed in a suit which is heard
and finally decided will operate as res judicata i.e it is not possible to
examine a judgment rendered in an earlier suit heard and finally
decided, as to whether the judgment rightly or wrongly decides the
suit. A judgment which becomes final is final and binds as res
judicata irrespective of any alleged rights or wrongs decided by the
earlier judgment. The only way a judgment can be held to be wrongly
decided, and held as not binding, if appeal is filed against that
judgment in the appellate court, and then such judgment is set aside,
but not by a defence raised in a subsequent suit. As already stated
above, the defendant no.1 in Suit No. 272/2003 namely Sh. Ravinder
Nath Pasricha, predecessor-in-interest of defendant nos. 1 and 2, had
filed an appeal against the judgment dated 24.4.2007 passed by Sh.
Naresh Kumar Laka, Civil Judge, before the appellate court, but the
appeal was dismissed as not maintainable. The matter rested at that.
Therefore, once there is finality to the judgment dated 24.4.2007 in
Suit No. 272/2003 then the said judgment and issues decided by the
said judgment operate as res judicata between the parties and persons
who claim through the parties of the said earlier Suit No. 272/2003.
The argument of the defendant nos.1 and 2 of the earlier judgment
dated 24.4.2007 in Suit No. 272/2003 being wrongly passed therefore
is also not an argument which is legally available to the defendant nos.
1 and 2 and therefore the same is rejected.
12. I may note that the certified copies of the judgments and
orders passed in suits by the civil courts do not have to be proved as
the said documents are public documents and can be referred to by the
Court in view of Section 74 of the Indian Evidence Act.
13. As a result of the aforesaid discussion, the application
filed by the plaintiff under Order XII Rule 6 CPC is liable to be and is
accordingly allowed. Suit of the plaintiff is decreed and a decree for
possession is passed in favour of the plaintiff and against the
defendants with respect to the first floor and barsati floor of the
property bearing no.25/24, East Patel Nagar, New Delhi.
14. In view of the gross and outlandish dishonesty of the
defendant nos. 1 and 2, and the strategic non-appearance of defendant
no.3 who was a party-defendant no.2 to the earlier Suit No. 272/2003,
this application is allowed with costs of Rs.2 lacs. Costs shall be paid
by the defendant nos. 1 and 2 to the plaintiff within a period of six
weeks from today. I exercise my powers to impose actual costs under
Section 35 CPC and by exempting the application of the Original Side
Rules for costs by exercising powers of exemption provided under
Rule 14 of the Original Side Rules. I may also note that the Original
Side Rules are proposed to be amended by this Court and by the
proposed amendment in the Rules now there is power to award costs
upto actual costs. It is high time that the dishonesty in litigation is
severely discouraged by imposing actual and exemplary costs because
it is found that this Court is burdened on a large number of occasions
with completely dishonest defences, such as the defences of defendant
nos. 1 and 2 in the present case.
15. In my opinion the present is also a fit case for initiating
criminal action against the defendant nos. 1 and 2 for taking up a false
defence and therefore this Court exercising its powers under Section
340 Cr.PC read with Section 209 IPC directs that the Registrar
General of this Court will draw up a complaint against the defendant
nos. 1 and 2 for taking up a completely false defence which is an
offence under Section 209 IPC, and this complaint be sent to the
concerned court for further proceedings against the defendant nos. 1
and 2. This criminal complaint will be pursued further by the plaintiff
in the present suit before the competent court
16. The application is allowed and disposed of accordingly.
CS(OS) No. 252/2016
17. The following issues are framed in the suit:-
(i) Whether the plaintiff is entitled to mesne profits, if so, at what
rate and for what period? OPP
(ii) Whether the plaintiff is entitled to interest on mesne profits, if
so at what rate and for what period? OPP
(iii) Relief.
18. At the request of the plaintiff, I appoint Ms. Rashi Punia,
Advocate (Mobile No. 9646303601), Chamber No. 102, Delhi High
Court, who is present in Court, as a Local Commissioner to record
evidence. Local Commissioner will be paid a lump sum fee of
Rs.75,000/- plus out of pocket expenses, and which will be borne by
the plaintiff initially, subject to final orders on costs to be passed at the
time of disposal of the suit. Plaintiff will make available a chamber
space or any other space in the High Court premises so that judicial
file does not go outside the High Court premises for recording of
evidence. Local Commissioner and parties will keep in mind ratio of
the judgment of the Supreme Court in the case of Bipin Shantilal
Panchal Vs. State of Gujarat and Anr. (2001) 3 SCC 1 with respect
to recording of evidence with the caveat that none of the parties will
unnecessary prolong the cross-examination of witnesses of the other
side and the questions in such cross-examination would be such which
would be relevant to the matters in controversy.
19. List before the Local Commissioner for fixing dates for
recording of evidence on 16.5.2018 at 4.00 PM.
20. List in Court for reporting the recording of evidence on
24.8.2018.
MARCH 15, 2018/ib VALMIKI J. MEHTA, J
