Asha @ Aysha Siddiqui v. K.C. Vohra & Ors.

1. This suit was originally filed by the plaintiff Mrs. Asha @ Aysha Siddiqui as attorney of Sh. N.K.P. Salve and with respect to Flat No.F-34, Tara Apartment, Alakhnanda, New Delhi. However upon the demise of Sh. N.K.P. Salve during the pendency of the suit, the plaintiff applied for substitution of herself in his place on the basis of a Will of Sh. N.K.P. Salve with respect to the said flat in favour of the plaintiff and the plaintiff also filed affidavits by way of ‘No Objection’ of Mrs. Arundhati Upadhayaya and Sh. Harish Salve, Senior Advocate being the natural heirs of Sh. N.K.P. Salve and in which affidavits it is further stated that Sh. N.K.P. Salve had also executed Agreement to Sell with respect to the said flat in favour of the 2013:DHC:1581 plaintiff. Though the plaintiff was vide order dated 14.09.2012 substituted but has not filed any amended memo of parties. However at this stage, it is deemed appropriate to, in the title of this judgment, describe the said Mrs. Asha @ Aysha Siddiqui as the plaintiff instead of Sh. N.K.P. Salve in whose name the suit was originally filed.

2. It is the case of the plaintiff in the plaint that the original plaintiff Sh. N.K.P. Salve on account of his pre-occupation had in the year 1984 appointed one Sh. Rajiv Malik as a caretaker for the aforesaid Flat No.F-34, Tara Apartment, Alakhnanda, New Delhi and had also allowed him to stay there as a licensee and the possession of the flat remained of Sh. N.K.P. Salve only; however it was learnt that the defendant No.1 Sh. K.C. Vohra had got electricity in his name with respect to the said flat and in which respect a complaint dated 04.12.2010 was lodged and whereupon the electricity connection in the name of the defendant no.1 was cancelled and connection in the name of Sh. N.K.P. Salve restored; that subsequently the defendant no.2 Sh. Karamjit Singh Lamba did not allow the plaintiff to open the flat and of which complaint with the police was lodged on 26.04.2011. The plaintiff thus filed the suit; (i) for mandatory injunction directing the defendants to ensure clear and free access of the plaintiff for visiting and using the said flat; and, (ii) for permanent injunction restraining the defendants from causing any interference or obstructing in the peaceful use and enjoyment and possession of the said flat.

3. Upon the summons of the suit having been issued, the Advocate for the defendants no.2&3 Sh. Karamjit Singh Lamba & Sh. Pramod Chadda appeared and informed on 21.02.2012 that the defendant no.1 Sh. K.C. Vohra had left the country and that earlier Mr. K.C. Vohra was in possession of the flat and had given a letter to the Society to take care of the flat. The counsel for the defendants no.2&3 were directed to produce the said letter as well as other relevant records in their possession with regard to the said flat. However the said records were not produced and direction in this regard was again issued on 01.03.2012 when the Secretary of the Society was also directed to produce the record. The counsel for the plaintiff on that date also disclosed that FIR No.280/2011 had been registered against the defendant no.1 Mr. K.C. Vohra and during the investigation it had transpired that the defendant no.1 had forged and fabricated the documents of transfer of the flat. On oral request of the counsel for the plaintiff, SHO, Police Station Chittranjan Park was impleaded as defendant no.4. On 21.03.2012, the records of the Society were shown to this Court and the Investigating Officer in the FIR aforesaid informed that the investigation was in progress.

4. Inspite of opportunities, the defendants no.2&3 did not file the written statement and the plaintiff did not serve the defendant no.1. However vide order dated 16.11.2012 the right of all the defendants including of the defendant no.1 who had not been served, to file the written statement was closed and the matter listed for ex parte evidence.

5. The plaintiff thereafter led ex parte evidence of four witnesses on 14.01.2013. The counsel who was earlier appearing for the defendants no.2&3 on that date sought time for cross examination and which was granted. Though the witnesses of the plaintiff did not appear thereafter but the counsel for the defendants no.2&3 also did not appear to cross examine and as such the right if any of the defendants no.2&3 to cross examine the witnesses of the plaintiff is closed. The counsel for the plaintiff closes his ex parte evidence and has addressed final arguments.

6. The plaintiff in her affidavit by way of examination-in-chief has proved:

(i) Share Certificate of Sh. N.K.P. Salve of the Tara Cooperative

(ii) The letter of delivery of possession of the flat by the Society to

(iii) Document showing assessment of the said flat for the purpose of House Tax in the name of Sh. N.K.P. Salve as Ex.P-5 & Ex.P-6.

(iv) The General Power of Attorney executed by Sh. N.K.P. Salve in favour of the plaintiff with respect to the said flat as Ex.P-1.

(v) Will of Sh. N.K.P. Salve as Ex.P-13 and the Death Certificate of Sh. N.K.P. Salve as Ex.P-14. The plaintiff has else deposed on the same lines as the plaint, contents whereof are noted hereinabove.

7. The plaintiff has examined Sub-Inspector Ram Singh as PW-2 who has proved the FIR, Head Constable Naresh Kumar as PW-3 who have proved the complaints lodged by Sh. N.K.P. Salve and the FIR, and the official from the Group Housing Department of the DDA as PW-4 who has proved the allotment of the flat in the name of Sh. N.K.P. Salve.

8. Needless to state, the aforesaid evidence remained unrebutted.

9. On the basis of the aforesaid evidence, the title of Sh. N.K.P. Salve to the said flat and on the demise of Sh. N.K.P. Salve of the plaintiff as heir of Sh. N.K.P. Salve with respect to the said flat under his Will Ex.P-13 is proved. Though ordinarily, the plaintiff ought to have filed a suit for possession instead of a suit for mandatory and permanent injunction but it is the case of the plaintiff that the defendants are in control and possession of the property through a licensee of Sh. N.K.P. Salve. The Division Bench of this Court in Prabhu Dayal Vs. Roop Kumar MANU/DE/0954/2004 has held that in such circumstances a suit for mandatory injunction is maintainable.

10. The suit is therefore decreed in favour of the plaintiff and against the defendants, directing the defendants to ensure clear and free access to the plaintiff Mrs. Asha @ Aysha Siddiqui of Flat No.F-34, Tara Apartment, Alakhnanda, New Delhi and restraining the defendants from obstructing peaceful use, enjoyment and possession of the plaintiff of the said flat.