judgement lavatory block

1

IN THE COURT OF MS SUJATA KOHLI, ADDITIONAL DISTRICT JUDGE, CENTRAL DISTT. TIS HAZARI COURTS, DELHI CS No. 171/14/04 Unique ID No. 02401C05098562009 Mrs. Phoola Wanti W/o late Shri Khem Chand R/o 3/48, Double Storey, Jangpura Extension, New Delhi-110014.

…...........Plaintiff

vs 1.

Shri Narinder Singh Sahni S/o late Shri Thakur Singh Sahni R/o 3/42-44, Double Storey, Jangpura Extension New Delhi-110014.

2.

Shri Nand Lal Satija S/o Shri Parmanand Proprietor M/s Krishna Embroidery R/o 4/63, Double Storey, Jangpura Extensiion, New Delhi-110014.

CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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2

3.

Shri Badru Khan Proprietor M/s Raj Tailor R/o Block No. 28, House No. 23, Trilok Puri, Delhi-110091.

….............Defendants

SUIT FOR DECLARATIION, POSSESSION AND PERMANENT INJUNCTION ON BEHALF OF THE PLAINTIFF. Date of filing the suit : 05-05-2004 Date of reserving the Judgment/Order : 14-07-2015 Date of passing the Judgment/Order : 22-07-2015 JUDGME NT : 1. Plaintiff has filed the present suit for declaration, possession and permanent injunction for quarter no. 3/46 and 3/48 Ground floor, Double Storyed Jangpura Extn. New Delhi- 110 014, alleging therein, that by lease and convayence deed executed on 13-11-1969, Govt. of India transferred double storeyed quarter no. 3/46 and 3/48 to one Sh. Amar Nath Sharma son of Sh. CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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Shiv Nath, duly registered with the sub-registrar Delhi. Sh. Amar Nath Sharma was the original owner of quarter no. 3/46 and 3/48, Ground Floor, Double Storeyed Jangpura Extn. New Delhi – 110 014. 2. The said Sh. Amar Nath Sharma, executed an agreement to sell in favour of Sh. Khem Chand, husband of the plaintiff, registered as document no. 2727 with the sub-registrar, Delhi on 2-8-1977. The said Amar Nath Sharma also executed supporting documents like General power of Attorney which is duly registered on the same date. Thus Sh. Khem Chand became the rightful owner of the aforesaid Quarter no. 3/48 ground floor, Double Storey, Jungpura Extn. New Delhi. 3. It is further stated that the husband of the plaintiff Sh. Khem Chand died on 20-10-1980 and after his death the

plaintiff

became


the

owner

of

corner

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quarter/tenement no. 3/48, Ground Floor, Double Storey, Jangpura Extension, New Delhi-110014. 4. Plaintiff further stated that Sh. Thakur Singh Sahani i.e., father of Defendant no. 1 was the owner of quarter no. 3/42 and 3/44 ground floor, double story, Jungpura Extension, New Delhi – 110014. After his death his son Sh. Narinder Singh Sahani defendant no. 1 became the owner of the said two quarters. 5. Plaintiff has recently come to know that defendant no. 1 has illegally sold one of four latrine/bathroom to the defendant no. 2 who has converted the same into shop and is running M/s Krishna Embroidery in the said latrine/bathroom which is a part of lavatory block which was once common.

The plaintiff has also came to

know that the defendant no. 1 has also illegally given another latrine/bathroom to the defendant no. 3 on rent who is running tailoring shop therein. CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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6. It is also been elaborated that other original allottees of quarter/tenament 3/42 to 3/48 ground floor, double story, Jangpura Extn. New Delhi – 110014 were issued similar lease cum conveyance deed by the Govt. of India. 7. As per arrangements, the plaintiff and defendant no. 1 are residing in double storey government built quarters having 32 quarters on the ground floor and 32 quarters on the first floor with common passage and stair case as shown in the site plan. As per arrangement in the scheme, initially there was common lavatory/bathroom i.e., two laterines and two bathrooms which exists at the corner of quarter/tenement i.e., quarter no. 3/48 of the plaintiff and these were meant for use by four quarter/tenement no. 3/48, 3/46, 3/44 and 3/42, The common lavatory block is shown as red in the site plan and the quarter /tenement of the plaintiff is shown in CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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yellow colour and of the defendant no. 1 is shown in blue colour.

The corner tenement was to share the

lavatory block alongwith three none corner allottees. Similarly, the stair case, common court yard were also common to all the allottees. 8. Due to passage of time and due to increase in the number of family members of allottees/owners of the quarters, the common lavatory block resulted in extreme instantiation and great hardships and health hazard to the residents of the quarters. The double story corner quarter association took up the matter with the Ministry of Rehabilitation, L&DO and the Municipal Corporation of Delhi, as a result of which, L&DO passed resolutions from time to time whereby it was decided to allot 17.5' x 10.75' sq. ft. area to three non corner allottees out of common court yard on the back side, for the specific purpose of constructing separate bathroom, laterine and kitchen. It was also decided to CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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give existing common lavatory block to the corner allottee. However, two years period was given to the non-corner allottees for construction of separate bathroom, laterine and kitchen and thereafter the noncorner allottees were to have no right whatsoever in the existing lavatory portion, which was to exclusively vest with the corner allottee i.e, plaintiff in this case. 9. Plaintiff also alleged that defendant no. 1 has already constructed his separate laterine, bathroom and kitchen as per scheme/resolution of L& DO; and L&DO is in the process to execute supplementary lease deed with the allottees in this regard. 10.Plaintiff alleged that corner allottee was given right to demolish the lavatory block and to build separate unit of kitchen, bathroom and laterine as per scheme. The corner allotte was given right to demolish the lavatory block and to build separate unit of kitchen, bathroom CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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and laterine as per scheme. Various letters, resolutions including dated 18-11-1964, 27-5-1968, 20-11-1968, 22-4-70, 25-1-77, 11-11-83, 17-3-89, 30-11-1990 have been passed in this regard. 11.It is further clarified that quarter no. 3/46 is owned by the son of plaintiff and is a non corner quarter. 12.According to the plaintiff the plan as envisaged by the said resolution of L&DO and MCD has been carried out in fulll by non-corner allottees. L&DO vide several letters have ordered to restore the possession of original lavatory block to the corner allottee, but inspite of construction of their separate unit of kitchen, bathroom and laterine, defendant no. 1 does not desist from using the common lavatory block. The plaintiff has been requesting the defendant no. 1 not to use the same but defendant no. 1 failed to comply with the same. CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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13.Plaintiff has agreed that he had also been given right to replace the existing lavatory block with new unit, but defendant no. 1 is not allowing the plaintiff to execute the same, even though the plaintiff has exclusive right over the area. 14.Plaintiff further alleged that Defendant no. 1 has illegally sold 1/4th portion of common lavatory block to the defendant no. 2 who is running embriodery shop . Similarly he has given another 1/4th portion of common lavatory block to defendant no. 3 on rent and both Defendant no. 2 & Defendant no. 3 are running their respective shops. Defendant no. 1 has no right in the said lavatory block either to sell or to let out to anyone. Similarly, Defendant no. 2 & 3 also have no right to occupy the said portion and to run their business therefrom.


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15.It is alleged that on 3-5-2004, the defendant no. 1 alongwith some anti-social elements came to the spot to demolish the lavatory block portion. They told that the non-corner allottees have decided to demolish and extend the same in the front portion so that more space and thereafter to sell the same as shops.

Plaintiff

approached local police and MCD but they failed to take any action against defendant in the year 2004. 16.The main relief sought by the plaintiff are:(i)Decree of declaration to be passed qua the suit property belonged her to be the owner thereof. (ii)

Secondly direction to evict the 3 defendants from

half portion of common lavatory block adjoining quarter no. 3/48, Double Story, Jangpura Extn. New Delhi. (iii) For

permanent

injunction

to

restrain

the

defendants from interfering in the peaceful possession CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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of the plaintiff and from demolishing, extending, disposing or selling or alienating or hand over the possession of the common lavatory block or porition adjoining quarter no. 3/48, Double Story, Jangpura Extn. New Delhi. As shown in the site plan and from obstructing the plaintiff in replacing the said lavatory block adjoining quarter no. 3/48, Double Storey, Jangpura Extn. New Delhi. 17.Defendant no. 1 in his written submission has raised objection firstly, that the suit is liable to dismissed, as it is hopelessly time barred by limitation in as much as the Limitation period for a suit for declaration or injunction is 3 years and 12 years for a suit for possession, if the plaintiff is the legal owner. Secondly, defendant no. 1 also raised the objection that plaintiff is not even the legal owner at all, and infact as per the averments of the plaintiff itself, the Govt. has allotted the property so Sh. Amar Nath Sharma and not to the CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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plaintiff or to her husband. Since going by the common case of the plaintiff no sale deed was executed nor any permission obtained from the Govt. by said Sh. Amar Nath Sharma to transfer property to the plaintiff and at any point of time.

It has been more than 18 years

back, but admittedly, till date, no sale deed has ever been executed in favour of Sh. Khem Chand or anybody else. As per plaintiff he has no title or ownership, hence plaintiff has no locus standi to file the suit. 18.Further objection has been raised i.e., suit is bad for non-joinder of necessary party as the government agency L&DO has not been made party. Accordingly the said issue should be dismissed. 19.Defendant no. 1 has further emphasised on the point that husband of the plaintiff was not owner as per law, and even if it is assumed that he was the owner, even CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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then the plaintiff alone can not be the sole owner and can not claim the declaration of ownership in her favour in the absence of other LRs on record of the case. As such the suit is bad for non joinder of the other LRs of Sh. Khem Chand. 20.Defendant no. 1 further objects that suit is devoid of cause of action as in much as no specific dates, month or year have been furnished by

the plaintiff .

Particularly alleged resolutions were passed during the entire period between 1964 to 1990, as such averments in the plaint are absolutely vague and frivelous. 21.Defendant has also objected that suit has not been properly valued for the purpose of court fees and jurisdiction.

The suit is therefore under valued and

under stamped.


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22.Plaintiff has valued the suit for Rs. 3,00,000/- for the purpose of recovery of possession whereas the market value of said portion is more than 10 lakhs and therefore, suit should be rejected U/O 7 Rule 11 CPC. 23.On the merit defendant no. 1 denied the ownership right of Sh. Khem Chand and thus also of the plaintiff. The defendant has even denied the averments regarding the death of Khem Chand for want of knowledge. He has completely denied the ownership of quarter in question. 24.Defendant no. 1 has emphitically stated that portion under occupation of Defendant no. 2 had been let out to him by defendant no. 1 about 20 years ago and wherein the defendant no. 2 running the business since then. 25.It has also been denied that portion which has been let CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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out is a part of common lavatory block as is being alleged by the plaintiff. 26.Similarly, it has also been denied that any portion was illegally given to defendant no. 2 and Defendant no. 3. Defendant no. 3 is also tenant for the last more than 15 years. 27.It has not been denied that plaintiff and defendant no. 1 are residing in the quarter at Ground Floor and First Floor as alleged by the plaintiff. It has not been denied that there was common passage and stair case. 28.Defendant no. 1 denied the allegations that no space has been left for corner allottee on the lavatory block as alleged by the plaintiff. It has been submitted that even otherwise the plaintiff is not the allottee and Sh. Amar Nath Sharma is the allottee who could claim any right. The version of defendant no. 1 is that all the allottees or CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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occupiers including the plaintiff have made their bathroom/toilet etc., on the space outside their quarter and therefore they can not claim any special right against other persons. 29.It is also not been denied that defendant no. 1 and other occupants of the quarter have made their lavatory/bathroom long ago i.e., 12 years back. 30.Defendant no. 1 denied that any such space was given to the non-corner allottes in the lavatory block or, they were given right to demolish, hence there is no ground as claimed by plaintiff. Defendant further denied any such claim passed by L&DO or MCD etc. Defendant no. 1 has also denied having forfeited his rights over the common lavatory with the plaintiff. The plaintiff has no right to, object to any construction or demolition as alleged by defendant no. 1.


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31.In the replication filed the plaintiff has denied the version of the defendant no. 1 and re-iterated her own as correct. 32.Defendant no. 2 in his written statement has also stated that the suit is not maintainable, as the suit has not been properly valued for the purpose of court fees and jurisdiction and the market value at the time of filing of suit for more than 10 lakhs. Similarly, regarding claim of the plaintiff about her ownership, Plaintiff according to them was never the owner and not in possession of the said portion of the property in this suit. Further plea of limitation has also been raised. The WS of defendant no. 2 and even of Defendant no. 3 are more or less on the similar lines. They have also taken the objection and almost adopted them as taken by defendant no. 1. Replications were filed to the WS in which plaintiff re-iterated her claim.


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33.On the basis of pleadings following issues were framed by the Predecessor vide proceeding dated 23-5-2005. 1. Whether the suit filed by the plaintiff is barred by time? OPD 2. Whether the suit is bad for nonjoinder of necessary parties? OPD 3. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD 4. Whether the suit for declaration and possession is not maintainable or claimed by defendants in their written statement? OPD 5. Whether the plaintiff has no locus standi to file the present suit against defendants? OPP 6. Whether the plaintiff is entitled to a decree for declaration as claimed in the plaint? OPP 7. Whether the plaintiff is entitled to a decree for possession as claimed in the CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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plaint? OPP 8. Whether the plaintiff is entitle to a decree for permanent injunction as claimed in the plaint? OPP 9.

Relief.

34.In evidence, plaintiff has examined herself as PW1 on her affidavit Ex. P1 and also she has relied upon the documents referred as Ex. PW1/1 to 18 through her affidavit. However documents exhibited as mark Ex. PW1/19 to PW1/33 have been de-exhibited and these are photo copies/secondary evidence. Sh. Rajender Singh, employee of Land & Development Office was examined as PW2 proved the lease deed and conveyance deed alongwith site plan as Ex. PW2/1 and PW2/2 , letter dated 30-11-1990 is Ex. PW2/4, Letter dated 29-5-1986 is Ex. PW2/5, Letter dated 31-1-1986 alongwith site plan are Ex. PW2/6 and


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Ex. PW2/7, letter dated 20-12-1990 is Ex. PW2/8, resolution dated 11-11-1983 is Ex. PW2/9. Sh. Abhey Singh, Record Keeper, Secretary Office, MCD, Town Hall, Delhi, was examined as PW3 and he proved the resolution no. 312 dated 07-5-1970 is Ex. PW3/1 and resolution no. 654 dated 27-4-1964 is Ex. PW3/2. Ms.

Neelam

department

Arora,

MCD,

Architect

Kashmere

from Gate,

Architecture Delhi,

was

examined as PW4 and she proved letter dated 30-121986 as Ex. PW4/1 and standing plan of C-type, Double Storey Tenaments which is exhibited as Ex. PW4/2. 35.Defendant's in turn examined DW1 on his affidavit as Ex. DW1/A, DW2 Nand Lal Satija was examined and has proved his affidavit dated 09-11-2008 consisting of CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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8 pages which is Ex. DW2/A. DW3 Badlu Khan also examined and has proved his affidavit dated 19-102010 and the same is Ex. D3W1/1. 36.No oral arguments were addressed by either party inspite of the fact that suit is already 11 years old. Defendant had concluded his evidence way back on 31-5-2013 and matter had been listed for final argument ever since 24-2-2013 but inspite of a period of 2 years, numerous dates. No oral argument were address on behalf of either party. Finally matter was reserved for judgment extending liberty to file written submission,

which

they

not.

My

issue

wise

observations are as under : Issue No. 1 : Whether the suit filed by the plaintiff is barred by time? OPD 37.The onus to prove this objection lay upon the CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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defendants.

It has been mainly contended in the

written arguments on behalf of defendant no. 1 that suit is hopelessly barred by time and suit property was admittedly in possession and enjoyment of defendant no. 1 for more than 25 years, who had admittedly let out the portion to defendant no. 2 about 20 years ago and other portion to defendant no. 3 more than 15 years ago .

The limitation period for a suit for

declaration or injunction is 3 years, while the period for suit for possession (if the plaintiff is the legal owner) is 12 years , whereas the present suit has been filed after 24 years as per the own averments in the plaint. 38.Plaintiff has alleged in the plaint that she became owner in 1980 i.e. after the death of her husband and therefore on the face of the averments made in the plaint, suit is clearly barred by limitation . 39.Further contended on behalf of the defendants that CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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plaintiff in para 25 relating to the cause of action has not even mentioned any dates at all since when the defendants alleged to have been occupying the portion in dispute. Plaintiff has mentioned several letters and resolutions right from 1964 till 1990 without specifying any dates whatsoever. 40.On that the plaintiff in his written arguments has contended that defendant no. 1 has only raised the objection but not led any evidence. Further, that the plaintiff came to know the illegal act of defendant no. 1 on 03-05-2004 and also the fact that defendant no. 1 had illegally let out the portion to defendant no. 2 and 3 in January, 2004.

The defendant no. 1 has not lead

any evidence that defendants no. 2 and 3 were given possession several years back.

Plaintiff has also

referred to the reply of DW-2 on his cross-examination on this point.


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41.However, going through the contentions of both parties on this point, I am in agreement with the defendants, in as much as going through the contents of the plaint, it is quite clear that defendant no. 1 had already taken possession, allegedly illegal, as per the plaintiff, many many years back. The relevant portion of the plaint needs to be referred to at this stage. 42.No doubt that in para 5 the plaintiff has made it look as if the plaintiff “recently” came to know that defendant no. 1 had illegally sold one portion to defendant no. 2 and let out the other portion in dispute to defendant no. 3 for running tailoring shop. 43.Firstly, it is not believable at all that the occupants of the quarters who are living there since 1969 onwards and in case of the plaintiff, even after the death of her husband on 20-10-1980 she would not be knowing as to what has been going on in the property in dispute. It CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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is not possible that an occupant whose husband is alleged to be the rightful owner, his widow who claims to have succeeded to him in interest, that she would not be aware about the exact date when defendant no. 1 sold or otherwise let out the property in dispute to other persons and the said persons started running tailoring shop. It should be noted that any one can make out, if a tailoring shop is being run, in a place where there was a bathroom earlier. The change would not go no unnoticed. This is the reason that plaintiff has not been able to state any specific date , month or even the year, when the defendant no. 1 is alleged to have passed on the possession of the disputed portion to defendants no. 2 and 3 and instead she has used an evasive term through out like the word “recently”. It is clear that plaintiff was throughout aware but slept over for all these years with her silence/ acquaintance. 44.Plaintiff even admitted that she had taken possession CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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of the property way back in the year 1971 and that she had been residing there. How it is possible that plaintiff had claimed in the plaint that she came to know only recently that suit property had been sold out to defendant no. 2 and 3 respectively only recently. 45.During her cross-examination , the plaintiff by her admission,

that defendant no. 2 and 3 are in

possession of suit property for the last 'about 6-7 years'.

If she herself has admitted then to be in

possession for 'last 6-7 years', her use of the word “recently” would be rendered a false statement in the year 2004 when the suit was filed. Infact, she has even admitted that it was agreed that possession of the suit property had been given to defendant no. 2 not by defendant no. 1 but by the father of defendant no. 1. This would further imply that the period would revert back to even more long ago than '6-7 years'.


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46.Though the defendants did not lead any specific evidence on this point, the onus had already shifted upon the plaintiff in view of her own self contradictory replies, given in the cross-examination regarding the possession of defendants no. 2 and 3. Her further vague statement, about her knowledge being 'recent' as used in the plaint is to be discarded. Further, she has even admitted that the portion in question was lying vacant in the year 1980 and that she was not in possession of the said portion.

If she admits then

plaintiff would naturally know, as to who was in possession right since 1980. 47.PW-1 has further even admitted that she used to get her own 'Fall of sari' and 'picko' work is done from the premises in question and saree fall and Piko” works done from defendant no. 2.

This would then imply

clearly a kind of acquiescence on part of the plaintiff to the continued possession of the defendant no. 2. CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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48.Taking into totality the averments made in the plaint, the admission of plaintiff in her own cross-examination and using the test of preponderance of probability, it is very clear that the plaintiff slept over a alleged right and filed a suit seeking relief of declaration much beyond three years prescribed by law , much beyond 12 years prescribed for the relief of possession. As such, Issue no. 1 is decided in favour of the defendants and against the plaintiff.

Issue No. 2 :

Whether the suit is bad for non

joinder of necessary parties? OPD 49.On this aspect, it has been mainly contended on behalf of defendants, that according to documents filed by plaintiff herself, the allotee from the government was Shri Amarnath Sharma and not the plaintiff CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

nor her

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husband Shri Khemchand. According to own case of the plaintiff, Shri Amarnath Sharma had executed an agreement to sell with the plaintiff's husband and sale deed was not executed even after getting permission from the government.

The sale permission had

admittedly been granted on or before 28-02-1986 i.e. 18 years ago to Shri Amarnath Sharma, but admittedly no sale deed was ever executed in favour of the plaintiff or in favour of her deceased husband. The agreement to sell cannot confer

ownership and as such the

plaintiff has no title or ownership documents in her favour. The said Shri Amarnath Sharma who was the lawful allottee from the government continued to be the lawful owner and only he was entitled to claim any right over the property. 50.Defendants have made reference to the relevant portion of the testimony of PW-2, from the office of L&DO, wherein he has admitted it is correct that lease / CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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conveyance deed which is Ex. PW-1/2 was executed in favour of Shri Amarnath Sharma. He even admitted it is correct, that today also the property continued to stand in the name of Shri Amarnath Sharma and that the said property was leasehold and not mutated in the name of Shri Khemchand at any point of time. The said witness even replied that no supplementary deed had been executed in favour of Shri Amarnath Sharma or in favour of Shri Khemchand or even in favour of plaintiff for that matter at any point of time.

According to

defendants, it is thus evident that the real owner continued to be Shri Amarnath Sharma only, but he was not even made a party to the suit and as such suit is bad for non-joinder of necessary parties .

Further

more, even the L& DO was not made a party. 51.On the same aspect, there has also been another defence through the written arguments to the effect that, even assuming the version of the plaintiff for a CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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moment i.e. Shri Khemchand had become the owner, and after death of her husband, she had succeeded , in that situation also since the plaintiff had children as well, they also were LRs in the first category, and plaintiff alone could not claim ownership as sole owner. Therefore non joinder of other children i.e. four sons and two daughters also made the suit bad for nonjoiner of necessary parties. 52.The plaintiff during her cross-examination admitted it is correct, that no sale deed had been executed by Shri Amar Nath in her husband’s name. She even admitted that she had four sons and two daughter and that her children had not executed any relinquishment deed in her favour with respect to the suit property. Therefore, going by their aspects also, the suit would be bad for non-joinder of necessary parties. 53.Plaintiff has failed to address any arguments on this CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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point. 54.I am in agreement with the contentions raised on behalf of the defendants and find that the suit is indeed bad for non-joinder of the necessary parties, mainly, on the ground that the fate of this suit would certainly affect the original owner Shri Amar Nath Sharma, and also L& DO to whom the property originally belongs and also the children of deceased Shri Khem Chand i.e. LR of the first category whose share they may be deprived off by the plaintiff, without impleading them, and without giving them an opportunity to be heard. Issue no. 2 is also accordingly decided in favour of the defendants and against the plaintiff. Issue No. 3 :

Whether the suit has not been

properly valued for the purposes of court fees and jurisdiction?

OPD


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55.The plaintiff has valued the suit for Rs. 3 lacs for purpose of recovery of possession, but defendants contend that the market value of the disputed portion at the time of filing of the suit was more than Rs. 10 lacs. However, the defendants have failed to lead any evidence on this aspect and as onus to prove their objection was upon the defendants, issue no. 3 is decided against the defendants and in favour of the plaintiff. Issue No. 4 : Whether the suit for declaration and possession is not maintainable as claimed by defendants in their written statements? OPD Issue No. 5 : Whether the plaintiff has no locus standi to file the present suit against defendants? OPD 56.Issue No. 4 and 5 are interdependent upon each other CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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and it is appropriate to decide both these issues together. 57.Defendants have raised the objection that suit is not maintainable and also that plaintiff has no locus standi to file the present suit. The main arguments advanced on behalf of the defendants under these issues is that since the original owner Shri Amar Nath Sharma has not been made a party to the suit , no sale deed was admittedly executed in favour of the plaintiff even after 18 years of grant of permission to the said Shri Amar Nath Sharma to sell the property, the plaintiff cannot have any locus standi to claim the decree of declaration and possession as well as injunction. Infact , the suit as filed by the plaintiff would not be maintainable for want of locus standi. 58.The plaintiff's claim that her husband was the owner and after the death of her husband in 1980, she CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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became the sole owner , stands proved false in the face of her own documentary as well as oral evidence. 59.No doubt, the plaintiff has summoned the record from L& DO to prove the conveyance deed in favour of Shri Amar Nath Sharma, no doubt she also examined the witness alongwith the record of the resolutions laying down the scheme in question, but the main hurdle in the way of the plaintiff to get relief is that she has not been able to prove her own ownership rights at all and in other words her locus standi to file the suit and to claim the

relief of declaration, possession and

injunction. 60.The main relevant portion of her testimony in this regard are necessary to be referred to herein. Plaintiff /PW-1 admitted that no sale deed was executed by Shri Amar Nath Sharma in the name of her husband. She has admitted that she has four sons and CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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two daughters. She admits that her children did not execute any relinquishment deed in favour of the plaintiff. Above all, apart from the documents brought on record, no other documents have been executed by the government at all in favour of the plaintiff or in favour of her husband in respect of the suit property. These admissions are more than sufficient to show that plaintiff could not establish her right property as being claimed by her.

to title or suit The documents

come up on record are only in favour of Shri Amar Nath Sharma and not in favour of Shri Khem Chand, the deceased husband of plaintiff or in her own favour. Infact, the plaintiff has admitted during further crossexamination that she did not even know as to whether the said Shri Amar Nath Sharma was dead or alive. 61.Though, plaintiff in her written arguments has claimed that she has proved that she is the owner of the property in dispute and referring to the documents Ex. CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

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PW-1/2 and Ex. PW-1/3; as rightly contended on behalf of the defendants, as per the settled legal position documents like agreement to sell and GPA cannot confer any title upon the holder thereof. There is no good explanation forthcoming from the plaintiff, even inspite of being cross-examined on the point, that Shri Amar Nath Sharma never executed any sale deed in favour of Shri Khemchand, even though permission had already been granted 18 years ago. 62.Proving

the

conveyance

deed

and

other

title

documents in favour of Shri Amarnath Sharma and proving the resolution and scheme issued by L & DO and MCD etc. would not be of help to the plaintiff, in so far as the issue of the ownership rights and locus standi of plaintiff herself are concerned.

The plaintiff has

miserably failed to establish the ownership right of her deceased husband Shri Khem Chand and therefore question does not arise for the plaintiff to claim CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

p.t.o.............38

38

ownership in the suit property. Issue no. 4 and 5 are accordingly decided against the plaintiff and in favour of the defendants.

Issue No. 6 : Whether the plaintiff is entitled to a decree for declaration as claimed in the plaint ? OPP Issue No. 7 : Whether the plaintiff is entitled to a decree for possession as claimed in the plaint ? OPP Issue No. 8 : Whether the plaintiff is entitled to a decree for permanent injunction as claimed in the plaint ? OPP 63.These three issues relate to the entitlement of the plaintiff

declaration,

possession

and

permanent

injunction. In view of the findings on issue no. 4 and 5 above, the plaintiff is obviously not entitled to any of the CS No. 171/14/04 Phoolwati vs narinder Ssingh Sahni

p.t.o.............39

39

three reliefs as claimed. Accordingly, issue no. 6, 7 and 8 are also decided against the plaintiff and in favour of the defendants. Relief : In view of the findings on above issues, the suit is dismissed. No orders as to costs. Decree Sheet be prepared. File be consigned to Record Room. Announced in the open court on the day of 27th July, 2015 SUJATA KOHLI Additional District Judge, Central District.


p.t.o.............

judgement lavatory block

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