LAWS(DLH)-2004-10-129

PRABHU DAYAL Vs. ROOP KUMAR

Decided On October 12, 2004
PRABHU DAYAL Appellant
V/S
ROOP KUMAR Respondents

JUDGEMENT

(1.) THIS APPEAL IS DIRECTED AGAINST THE JUDGMENT AND DECREE DATED 6TH FEBRUARY, 1991 PASSED BY THE LEARNED ADDITIONAL DISTRICT JUDGE, DELHI IN SUIT NO.60/2001 ( OLD SUIT NO.19/1991) DECREEING THE SUIT FILED BY THE RESPONDENT NO.1. 2.ONE ROOP KUMAR(RESPONDENT NO.1 HEREIN) BROUGHT A SUIT FOR PERMANENT AND MANDATORY INJUNCTION AGAINST PRABHU DAYAL(APPELLANT HEREIN). THE APPELLANT AND RESPONDENT NOS.2 TO 7 (ARRAYED AS DEFENDANT NOS. 2 TO 7 IN THE SUIT) WERE SONS AND DAUGHTERS OF LATE SHRI KAPOOR CHAND. PLAINTIFF AVERRED THAT HIS FATHER KAPOOR CHAND WAS A TENANT IN SHOP NO.7707-07, DHARAM PURA LODGE, CLOCK TOWER, SUBJI MANDI, DELHI(HEREINAFTER REFERRED TO AS THE 'SUIT PROPERTY') FOR THE LAST 40 TO 55 YEARS. THEY CARRIED ON BUSINESS ORIGINALLY OF CYCLE TYRES AND REPAIRS AND LATERLY SOLD JUICE.

(2.) THEY WERE LASTLY DOING THE BUSINESS OF COTTON IN THE NAME OF SHARMA COTTON CORDING AND FLOUR MILLS. SHRI KAPOOR CHAND DIED INTER STATE ON 12TH NOVEMBER, 1990 AND HIS BROTHER VASUDEV DIED A ACHELOR ON 25TH NOVEMBER, 1990. ACCORDING TO THE PLAINTIFF SHRI VASUDEV SOME TIME LIVED IN THE SHOP AND SOMETIMES WITH THE PLAINTIFF.

(3.) THE PLAINTIFF CLAIMED THAT HE HAD EXECUTED A WILL DATED 22ND NOVEMBER, 1990 BEQUEATHING HIS ENTIRE MOVABLE AND IMMOVABLE PROPERTIES IN FAVOUR OF THE PLAINTIFF. 3.ACCORDING TO THE PLAINTIFF, DEFENDANT NO.1-PRABHU DAYAL WAS AN EMPLOYEE OF SHRI VASUDEV IN THE BUSINESS CARRIED ON IN THE SHOPS IN DISPUTE. SINCE THE BUSINESS OF MAKING QUILTS ETC. WAS CARRIED OUT LATE INTO THE NIGHT THE DEFENDANT NO.1(APPELLANT HERE IN) SOMETIMES WAS PERMITTED TO RESIDE IN THE SHOPS. ON DEMISE OF BOTH SHRI KAPOOR CHAND AND SHRI VASUDEV THE PLAINTIFF HAD REQUESTED TO SHRI PRABHU DAYAL, DEFENDANT NO.1 THAT HIS SERVICES WERE NO LONGER REQUIRED AND ASKED HIM TO LEAVE THE SHOP IN DISPUT. DEFENDANT NO.1 REQUESTED FOR PERMISSION TO STAY TILL HE MADE ALTERNATIVE ARRANGEMENTS BUT LATER TURNED DISHONEST. 4. AS THE LICENCE OF THE DEFENDANT NO.1 HAD BEEN TERMINATED, THE PLAINTIFF BROUGHT THE SUIT SEEKING THE FOLLOWING PRAYERS:- "THE PLAINTIFF PRAYS THAT THIS HON'BLE COURT BE PLEASED TO PASS A DECREE IN FAVOR OF THE PLAINTIFF AND AGAINST THE DEFENDANT NO. 1. I)FOR PERMANENT INJUNCTION RESTRAINING THE DEFENDANT NO. 1 FROM ENTERING THE SHOPS NO. 7706-07, DHARAM PURA LODGE CLOCK TOWER, SUBJZI MANDI, DELHI; OR IN THE ALTERNATIVE FOR MANDATORY INJUNCTION COMMANDING AND DIRECTING THE DEFENDANT NO. 1 TO VACATE THE SAID SHOPS NO. 7706-07 DHARAM PURA LODGE CLOCK TOWER, SUBZI MANDI DELHI, AND/OR II) FOR PERMANENT INJUNCTION RESTRAINING THE DEFENDANT NO. 1 FROM DEALING IN ANY MANNER WHATSOEVER OR DISPOSING OFF OR APPROPRIATING TO HIMSELF ANY OF THE ASSETS OR PROPERTIES OF SHRI VASU DEV ALIAS VASU DEV DETAILED IN PARA 5 OF THE PLAINT; AND/OR III) GRANT PERMISSION TO THE PLAINTIFF UNDER ORDER 2 RULE 2 C.P.C. AS PER PARA 14 HEREINABOVE. IV) AWARD COSTS OF THE SUIT TO THE PLAINTIFF AGAINST THE DEFENDANT NO. 1; AND/OR V) GRANT SUCH OTHER AND FURTHER RELIEF AS MAY BE DEEMED FIT AND PROPER IN THE FACTS AND CIRCUMSTANCES OF THE CASE." 5. DEFENDANTS 2 TO 7, BROTHERS AND SISTERS OF THE PLAINTIFF ADMITTED THE CLAIM OF THE PLAINTIFF. THEY SOUGHT PERMISSION TO VISIT THE SHOPS IN DISPUTE AND TO SAFEGUARD THEIR INTEREST IN THE BUSINESS AND MAKE INSPECTIONS. DEFENDANT NO.8 I.E. THE WAKF BOA RD ALSO FILED A WRITTEN STATEMENT SETTING UP A CASE THAT ONLY SHRI VASUDEV SHARMA WAS A TENANT IN THE SHOPS IN DISPUTE AND THAT THE TENANCY RIGHTS COULD NOT HAVE BEEN WILLED AWAY BY ANY PERSON. 6. IN THE INSTANT MATTER WE ARE CONCERNED ONLY WITH THE RIGHTS OF THE DEFENDANT NO.1 TO OCCUPY THE SHOP IN QUESTION. THE DEFENDANT NO.1 IN ITS WRITTEN STATEMENT SET UP FOLLOWING CLAIM:- "PRELIMINARY OBJECTIONS THAT THE DEFENDANT NO.1 HAS BEEN SERVING LATE SHRI VASUDEV SHARMA AND USED TO TAKE CARE OF HIM DURING HIS LIFETIME. IN ADDITION TO THIS, THE DEFENDANT NO.1 HAS BEEN DOING BUSINESS IN PARTNERSHIP WITH LATE SHRI VASUDEV SHARMA UNDER THE NAME AND STYLE OF IS SHARMA PRABHU DAYAL & CO. VIDE DEED OF PARTNERSHIP DATED 12.11.1990 COMMENCED ORALLY IN THE YEAR 1980 BY INVESTING CAPITAL OF ABOUT RUPEES ONE LAKH IN EQUAL SHARES WHICH WAS SUBSEQUENTLY REDUCED IN WRITING. THE ANSWERING DEFENDANT WAS AUTHORISED TO CERATE THE BANK ACCOUNT OF THE PARTNERSHIP BUSINESS. THE ACTUAL BUSINESS WAS BEING RUN BY THE ANSWERING DEFENDANT WHILE LATE SHRI VASUDEV SHARMA WAS A SLEEPING PARTNER AND USED TO SUPERVISE THE WORK AS PER CONVENIENCE OF HIS HEALTH. HE HAD NO ISSUE THE DEATH OF LATE SHRI VASUDEV SHARMA, THE ANSWERING DEFENDANT IS THE SOLE PROPRIETOR OF THE BUSINESS KNOWN AS SHARMA PRABHU DAYAL & CO. EARLIER IT WAS UNDER THE NAME OF SHARMA FLOUR MILLS & COTTON CORDING MACHINE IN THE PREMISES IN DISPUTE COMPRISING OF SHOP NO.7706- 07 DHARAMPUR LODGE, GHANTA GHAR, SUBZI MANDI, DELHI. THE DEFENDANTS NO.2 TO 7 LATE KAPOOR CHAND, FATHER OF THE PLAINTIFF OR THE PLAINTIFF NEVER REMAINED IN POSSESSION NOR HAS ANY RIGHT, TITLE OR INTEREST OR CONCERN EITHER IN THE PREEMIES IN DISPUTE OR IN THE BUSINESS OR IN THE ASSETS. THE PLAINTIFF HAS OBTAINED EX-PARTE INJUNCTION ORDER BY MAKING WILLFUL FALSE STATEMENTS IN THE PLAINT AND SUPPRESSING THE TRUTH FROM THIS HON'BLE COURT. ON MERITS PARA 4 IS WRONG AND DENIED. THE DEFENDANT NO.4 HAS BEEN DOING BUSINESS IN PARTNERSHIP SINCE 1980 WHICH TERMS WERE REDUCED IN WRITING VIDE PARTNERSHIP DEED DATED 26.10.90 BY INVESTING A CAPITAL OF ABOUT RS. ONE LAKH IN EQUAL SHARES ON THE MACHINERY, TOOL AND OTHER ASSETS. AFTER THE DEATH OF LATE VASUDEV SHARMA THE ENTIRE ASSETS AND LIABILITIES HAVE DEVOLVED UPON THE ANSWERING DEFENDANT WHO HAS BECOME DEFENDANT NO.1 HAD, THEREFORE, SET UP A PLEA OF BEING AN HEIR BY TESTAMENTARY DISPOSITION AS WELL AS THE SURVIVING PARTNER OF LATE SHRI VASUDEV AND CLAIMED EXCLUSIVE POSSESSION OF THE SUIT PROPERTY. HE PLEADED THAT THE SUIT FOR MANDATORY INJUNCTION THE SOLE PROPRIETOR OF THE CONCERN M/S SHARMA PRABHUDAYAL & CO." 7.THE N OF THE PLAINTIFF WERE INCOMPETENT. THE PARTNERSHIP DATED 26TH OCTOBER, 1990 WAS SET UP BY THE DEFENDANT NO.1 BESIDES THE WILL DATED 31ST AUGUST, 1989 IN HIS FAVOUR. 8. THE MATTER PROCEEDED TO TRIAL ON THE FOLLOWING ISSUES FRAMED ON 24TH MARCH, 2003:- "1. WHETHER THE DECEASED VASU DEV HAD EXECUTED ANY WILL DATED 22.11.1990, AS PROPOUNDED BY THE PLAINTIFF? IF SO, WHETHER THE SAID WILL WAS VALIDLY EXECUTED IN SOUND DISPOSING STATE OF MIND?