IN THE COURT OF SH.

TARUN KUMAR VERMA, CIVIL JUDGE

(JUNIOR DIVISION), PANCHKULA

Civil Suit No.144/2015

IN THE MATTER OF:-

Rajesh Lohan Vs. Neelam

(Suit for mandatory injunction & for recovery)

WRITTEN ARGUABLE POINTS ON BEHALF OF DEFENDANT

RESPECTFULLY SHOWETH:

1. That the suit filed by the plaintiff is not maintainable, as under Section

39 of Specific Relief Act, a mandatory injunction can be issued against

any person, where the court can issue injunction for necessary to compel to

obey any terms and conditions which are not in existence. In the present

case, there is no license is in writing, which is mandatory in written and is

liable to be registered under the Registration Act, as it is a compulsory

registrable document under the Registration Act, hence the oral license is

not permissible, especially in the family members.

It is admitted case of the plaintiff that the defendant is legally

wedded wife of his real brother namely Rakesh Lohan, who is also

member of Joint Hindu Family headed by Sh. R.K. Lohan i.e. Sh. Ram

Karan Lohan. The defendant from the date of her marriage with Rakesh
Lohan, elder brother of the plaintiff was entered into her matrimonial

home i.e. H.No.166, Sector-21, Panchkula and from the date of her

marriage, defendant is enjoying the house in question, as her matrimonial

home. As and when any female got married in the family, she

automatically becomes the member of Joint Hindu Family. If her husband

died, she becomes the first legal heir of her husband and even if her

husband already expired before the father-in-law or mother-in-law in that

case also she automatically become the natural successor in her in-laws

property. Hence, the defendant has legal right to stay in her matrimonial

home, which belongs to her in-laws Hindu Joint Family.

2. That the plaintiff to pay the advolarum court fee under Section

7(v) of Court Fees Act. The present suit is barred by Law. It is neither a

suit for possession nor it is a rent petition, hence the issues framed in this

case are also not accordance with law. The suit for mandatory injunction

only maintainable, where any person is legally bound to comply with the

any term and conditions in the written instrument or is bound by Law or

Constitution. In the present case, there is no license in written or signed by

the defendant, she can’t be bounded and no injunction can be issued

against her, as she is not legally bounded by any instrument, which is to be

implemented under the mandatory injunction. Where there is no existence

of any written document or license in that case no license can be revoked

as alleged by the plaintiff.

3. That in para No.3 of the plaint as well as in PW-1, it was admitted

fact that the parents of the plaintiff, who are also the parents of the

husband of the defendant, used to stay in the same house earlier, which

shows that the house in dispute is the property of Joint Hindu Family and

was purchased from the Joint Hindu Family Funds by ‘Karta’ Sh. R.K.

Lohan, the father-in-law of the defendant. This fact was also admitted and

corroborated by virtue of statement of property filed by Sh. R.K. Lohan,

before appointing Authority/Haryana Govt. as Sh. R.K. Lohan was

working as Executive Engineer with the Haryana Govt. in PWD

Department, which is already exhibited in the present case.

4. That from the pleadings of the plaintiff, it has been stated in para

No.7 of the plaint as well as from the affidavit filed by PW-1, that the

defendant entered in the house on 14.02.2014. It was informed by

neighbourer namely Madhulika to the plaintiff, but neither Madhulika was

examined nor police officials were examined regarding this fact. If this

fact is reliable, then the plaintiff deemed to be unauthorized disposed,

having title in that case, the plaintiff is to file suit for possession U/s 6 of

Specific Relief Act, which only can be filed within 6 months from the date

of dispossession. But the present suit has been filed on 09.03.2015 without

affixing proper Court Fee, prescribed for suit for possession under the

market value, hence the present suit is not maintainable. Further in para

No.8, it was stated by the plaintiff that the father of the plaintiff, who

resides in this house, also made an application, if the plaintiff alleged, he is

not residing in India and his father has to use the house in dispute as

alleged in para No.3, then he can move a suit for possession against the

unauthorized dispossession, but Sh. R.K. Lohan, admitted this fact that the

house in dispute is in the possession of the defendant while making his

written statement before police, document to this regard is already on file.

It falsify the stand of the plaintiff that he was dispossessed from the house.

The matter of fact is that being legally wife of elder brother of the plaintiff,

the defendant was entered into this house in question as her matrimonial

home being daughter-in-law of Joint Hindu Family.

6. That in para No.9 to 11 of the plaint, it was admitted that since

husband of the defendant played a fraud in connivance with the plaintiff,

his wife Rupali and parents and sister of the plaintiff and regarding this an

FIR was registered against them at Panchkula bearing No.101 of 2014, U/s

420,406,498-A, 34, 323,494 IPC at P.S. Sector-5 Panchkula in which the

plaintiff and his brother Rakesh Lohan, who is husband of the defendant

declared PO and other family members are facing trial before the Trial

Court at Panchkula (copy of challan is also exhibited in the present case.

The present suit is a counter blast and only to put pressure upon the

defendant for compromise or leave the house in dispute. It is also

necessary to mention here that during the present suit, the defendant filed a

criminal Misc. petition before the Hon’ble Punjab & Haryana High Court

for cancellation of anticipatory bail granted to Sh. R.K. Lohan and his wife

and during that CRM-M, the matter was referred to Mediation Centre as
well as in the Court, where the matter was taken for compromise. The

plaintiff through his father so many offered a huge amount for compromise

and the factum of possession was also admitted by the plaintiff through his

father, hence the possession of the defendant in the house is legal one

being her matrimonial home and has right to reside in the same.

7. That in the whole pleadings of the plaintiff, it was never described that

when the license was granted to the defendant either orally or

documentary, in the absence of the same, the license could not be revoked.

The license has been described in the Easement Act, in which it is

clearly described that no license more than 11 years could be orally or

without registration/written. Hence, there is no license, which can bind the

defendant to comply with the terms and conditions and for which a

mandatory injunction can be issued against the defendant.

8. That in the suit, the plaintiff Rajesh Lohan never appeared as

witness, who is the best person to be examined regarding the facts of the

case. One Rupali Lohan, alleging herself as wife of Rajesh Lohan was

examined under one Special Power of Attorney, which was not embosses

from Indian Registration Authority. Without embosses from Indian

Registration Authority, the document is not a valid document and not

admissible in the evidence, hence the statement of Rupali could not be

read in the evidence. This objection was taken at the time of examination-

in-chief of Ms. Rupali which was kept pending for final decision of the
present case. The documents tendered by Rupali are also not legally

proved in the present case.

9. That it is admitted fact that during the purchase and construction of

the house in dispute, Rajesh Lohan was student and was studying in

Maharashthra as a hostel resident student. At that time, he was regular

student of the Babasaheb Naik College of Engineering, PUSAD,

Maharasthra. This factum was duly proved by way of examination of DW-

2 Sh. R.D. Jadav from the said institute, hence, since the name of Rajkaran

Lohan, Rajesh Lohan and Rakesh Lohan are written as initial as R.K.

Lohan. Raj Karan Lohan was Executive Engineer in the PWD Department

and from the income of Joint Hindu Family, he purchased properties,

which was later on got registered as Benami property in the name of

Rajesh Lohan for the purpose of obtaining VISA for the other countries,

which was used and it is admitted fact from the statement of alleged

attorney of the plaintiff namely Rupali. Hence, for the sake of arguments,

if it is presumed that Rajesh is owner of the property, in that case, the

property should be included into the property of Joint Hindu Family, as

submitted above noted paras, Sh. R.K. Lohan detailed this house as the

property of Joint Hindu Family in his property statement submitted before

the Department. If, it is denied, then it is benami property, which is

prohibited under the Law and in that case, the plaintiff could not claim a

rightful owner of the property and cannot seek the dispossession of the

defendant.
10. That it is also admitted fact that the FIR registered against the

plaintiff and his family members, was never challenged nor any

proceedings against that FIR were filed by the plaintiff or his family

members. Rupali, the alleged Power of Attorney of the plaintiff, also

misguided this Hon’ble Court and made a false statement. Matter of fact is

that one Andrea Sandra was earlier married with the husband of the

defendant namely Rakesh Lohan, who is owner of this House and their

marriage was also registered with the Sub-Registrar Panchkula, which was

also arranged by Rupali, because she is fast friend of Andrea Sandra. This

fact has also been proved from the photographs produced by the

defendant, duly exhibited, hence Rupali is also liable to be prosecuted

under Section 340 Cr.P.C. for filing false affidavit and supply wrong

information before the Court of competent jurisdiction. During the cross

examination of the defendant, the defendant particularly questioned as

court question regarding harassment, humiliation or demand, as Rakesh

Lohan never visited India since Feb.2013.

In reply, it was specifically answered by the defendant at page

No.4 of DW-1, which is unchallenged that “ jkds'k us eq>s dgk fd

edku u- 166] lsDVj 21] iapdqyk okyk ?kj esjs yxk;s iSlksa

ls cuk gS vkSj fy;k x;k gS] blfy, vc eq>s 15 yk[k dh t:jr

gS tksfd tSls&rSls djds eq>s nks”, after this fact which

unchallenged, neither Rakesh was summoned as witness nor he was joined

as defendant, who is necessary party in the present suit, as the defendant

entered into the foot step of Rakesh Lohan being legally wedded wife and

if any alleged license was given that was given to Rakesh Lohan, the

husband of the defendant, who brought the answering defendant in this

house as daughter-in-law of the Joint Hindu Family as well as his wife. In

the whole pleadings, neither it was pleaded nor taken defence that the

family was partitioned and never have any jointness or any partition was

ever effected from any of court of competent jurisdiction or orally, hence it

has been proved that the house in dispute belongs to Joint Hindu Family

and being matrimonial home of the defendant, she has right to stay and is

not liable to pay any future mesne profits @ Rs.50,000/- per month. On

one hand, the plaintiff claiming that the defendant entered into the portion

of house in his pleading and on the other hand, the plaintiff claiming future

mesne profits as well as possession of the entire house, both pleadings are

contradictory with each and other and fails the whole case of the plaintiff.

Further it was also stated by the DW-1 at page No.7 that “my matrimonial

home is House No.166, Sector-21, Panchkula, so being matrimonial home,

I have right to stay in the house in dispute”. It was not also challenged or

disputed by the plaintiff.

11. That further the defendant duly proved from the Income Tax

Department as well as from the banks that the plaintiff has no independent

income besides income from the Joint Hindu Family during the purchase

& construction of the present house, who were examined as DW-3 to DW-
9. All witnesses proved that they can’t describe the full abbreviation of

R.K. Lohan, whether it is under the name of Ram Karan Lohan, or Rajesh

Lohan and Rakesh Lohan. From the perusal of all documents, it is very

much clear that all the signatures were done by one and same person

which were done by Raj Karan Lohan, the father of the plaintiff and

husband of the defendant, hence Raj Karan Lohan is also liable to be

prosecuted for creating false document as well as evidence and even all

documents may kindly be sent for Forensic Examination in order to

ascertain the truth. In this sequence, the important document is attested

copy of Ex.PW-2/B, which is an application for getting permission from

Estate Office for permission of transfer, which bears the signature of

Rajesh Lohan at page No.98 and page No.13 of the file the Estate Office

presented by witness PW-2, which is totally different and this Hon’ble

Court can also consider and take appropriate judicious notice regarding the

signatures. Hence all the documents in India were prepared by Ram Karan

Lohan by putting his signature of Rajesh Lohan and Rakesh Lohan, which

proves that the house in dispute is the house of Joint Hindu Family and the

defendant has right to stay in her matrimonial home, as daughter-in-law

and her matrimonial house.

12. That it is also admitted fact that after the marriage of defendant, a

dispute was arisen and specific reply came at page No.13 of PW-1 that

“eq>s ;kn u gS fd 10-01-2013 dks ge lHkh QSeyh eSEcjl o

izfroknh vkSj mlds QSeyh eSEcjl edku u- 166@21] iapdqyk esa

bDdBk gq, gksa”. It is crucial date when both the parties i.e. Joint Hindu

Family of the plaintiff and defendant and the family of the defendant

conveyed a Panchayat and it was settled that one person be appointed as

Arbitrator, who shall decide the matter and legally rights of the defendant

as daughter-in-law in the Joint Hindu Family regarding this house, as well

as in the other property as well. Both parties given their consent and the

real brother-in-law of the plaintiff namely Jai Kumar Maan was appointed

as Arbitrator, who given his arbitration award, which was later on

produced on the file and was duly exhibited. Neither any objection is

raised regarding the passing of the arbitration award nor it was denied or

challenged. If for the sake of arguments, defendant could not prove her

right in the matrimonial home, in that case, the defendant become owner in

possession of the house by virtue of Arbitration Award, which is

executable as decree from the Court of competent jurisdiction. The

defendant reserves her right to file the execution of the award, which

become final and duly proved on the file. During the pendency of the

present case, although the matter is sub-judice before this Hon’ble Court,

Raj Karan Lohan moved a false application to put the pressure upon the

defendant in the police. SHO (Economic Cell), P.S. Sector-20, Panchkula

summoned the defendant regarding validity of award which is the part of

the file of the suit pending before this Hon’ble Court. Police have got no

jurisdiction to entertain and decide the validity of the award, as the civil

litigation as well as criminal litigations are pending before the court of

competent jurisdiction i.e. before this Hon’ble Court. Moreover, the

plaintiff not filed any objection nor challenged the award or produced the

arbitrator to rebut the factum of passing of the award by him. Since Jai

Kumar Man is real son-in-law of Raj Karan Lohan and real brother-in-law

of plaintiff, who is working as Deputy CMO in Health Department of

Haryana Government, whose signature and handwriting is easily available

for comparison, but without putting defence before this Hon’ble Court, Raj

Karan Lohan, who has no concern with the present suit, only with the

motive to put pressure upon the defendant filed the false application with

the police.

In view of above submissions and documents on the file

which may kindly be read as part and parcel of this written arguments and

law laid down by the various Hon’ble High Courts as well as the Hon’ble

Supreme Court attached with this written arguments, the suit of the

plaintiff may kindly be dismissed with costs being false and frivolous and

not maintainable in view of Section 39 of the Specific Relief Act as well

as barred by the law, with observation being not properly valued for the

purpose of mandatory injunction as well as possession with costs. It is

further prayed that any explanatory costs be imposed for harassment,

humiliation, mental torture and dragging the defendant into false litigation.

PLACE:

DATE: SUBMITTED BY:

(NEELAM)
Through Counsel :-

(PARMOD BHARDWAJ),

Advocate.
 IN THE COURT SH. VARUN KUMAR VERMA, ADDL. CIVIL
JUDGE (JR. DIVN.), PANCHKULA

IN RE:

Rajesh Lohan Vs. Neelam

(Suit for mandatory injunction)

Next Date of Hearing:

Application U/O 39, Rules 1&2 CPC read with Section

151 CPC for restraining the SHO, (Economic Cell) P.S.
Sector-20, Panchkula to investigate the matter on the
application moved by Raj Karan Lohan regarding
Arbitration Award.

Further SHO, (Economic Cell) P.S. Sector-20, Panchkula

be restrained to take any coercive method against the
applicant/ defendant and to summon again & again
regarding enquiry upon the application of Raj Karan
Lohan.

RESPECTFULLY SHOWETH:

1. That the above noted suit is pending before this Hon’ble Court and is

now fixed for final arguments.

2. That during the proceedings, this Hon’ble Court allowed to

summon material witness along with Arbitration Award passed by Dr. Jai

Kumar Man between the parties upon their consent regarding settle the

dispute between the parties regarding matrimonial and other property

dispute.
3. That on the summoning of material witness, original award was

placed on record by the witness and a lengthy cross-examination was done

by the counsel of the plaintiff in the presence of plaintiff’s representative

on _______.

4. That from the date of production of original award which was

passed by Dr. Jai Kumar Mann, who is real brother-in-law (gainer), who is

working as Deputy CMO in Haryana Government. The matter is sub-

judice before this Hon’ble Court and no objection or evidence was given

by plaintiff Rajesh Kumar Lohan. The validity of the Award was also not

challenged by the plaintiff.

5. That Raj Karan Lohan, the father-in-law of the

applicant/defendant during the pendency of the above noted suit to put the

pressure upon the applicant/defendant moved a false application before

SHO (Economic Cell), Police Station Sector-20, Panchkula, who sent a

notice for making statement and attendance which was received at night

on 24.10.2017 by the family members, in which the applicant/defendant

has been directed to attend the police station on 25.10.2017. On

25.10.2017, the applicant/defendant appeared before the Investigation

Officer, who again directed the applicant/defendant to come tomorrow for

making statement as well as after one week to join the investigation.

Although this fact was stated by the applicant/defendant that the earlier

criminal litigation as well as the civil suit between the parties is pending

regarding the same matter and now is at the final stage.

6. That investigation officer as well as police at the instance of Raj

Karan Lohan putting pressure upon the applicant/defendant and also

threatening by using coercive method, which amounts to contempt of this

Hon’ble Court, as the validity of the award is to be decided by this

Hon’ble Court. During the pendency of the civil suit, police has no power

to see the validity of award which is on the file of the suit pending before

this Hon’ble Court. If Raj Karan Lohan as well as Investigation Officer

succeed to do so, the applicant/defendant shall suffer an irreparable loss

and the balance of convenience is also in favour of the

applicant/defendant, since the award has been produced by the witness in

original before this Hon’ble Court and the validity of award is to be

decided by this Hon’ble Court. Police has got no jurisdiction to entertain

and decide the validity of award which is the subject matter of the civil

suit pending before this Hon’ble Court, hence the applicant/defendant has

prima facie case in his favour.

It is, therefore, respectfully prayed that the plaintiff through his

representative especially Mr. Raj Karan Lohan, father-in-law of the

applicant/defendant and SHO, (Economic Cell), P.S. Sector-20,

Panchkula, may kindly be restrained to initiate any proceedings regarding

validity of the award as well as also be restrained not to summon the

applicant/defendant in the police station on the application given by Raj

Karan Lohan in regard to award and suit pending before this Hon’ble

Court.
 It is further prayed that all record pertaining to investigation done

by the Investigation Officer on the application of Raj Karan Lohan

regarding the validity of arbitration award also be summoned in this Court

by way of issuance of directions to the said Investigation Officer/SHO

(Economic Cell), P.S. Sector-20, Panchkula.

Any other relief directions, this Hon’ble Court may deem fit and

proper also be issued in the interest of justice.

PANCHKULA

DATED:
APPLICANT/DEFENDANT

THROUGH COUNSEL:

( )

ADVOCATE
 IN THE COURT SH. VARUN KUMAR VERMA, ADDL. CIVIL
JUDGE (JR. DIVN.), PANCHKULA

IN RE:

Rajesh Lohan Vs. Neelam

(Suit for mandatory injunction)

Next Date of Hearing:

Affidavit of Neelam aged years, W/o Rakesh

Kumar Lohan, R/o #166, Sector-21, Panchkula.

I, the above named deponent, do hereby solemnly affirm and

declare as under:-

1. That the above noted suit is pending before this Hon’ble Court and is

now fixed for final arguments.

2. That during the proceedings, this Hon’ble Court allowed to

summon material witness along with Arbitration Award passed by Dr. Jai

Kumar Man between the parties upon their consent regarding settle the

dispute between the parties regarding matrimonial and other property

dispute.

3. That on the summoning of material witness, original award was

placed on record by the witness and a lengthy cross-examination was done

by the counsel of the plaintiff in the presence of plaintiff’s representative

on _______.

4. That from the date of production of original award which was

passed by Dr. Jai Kumar Mann, who is real brother-in-law (gainer), who is

working as Deputy CMO in Haryana Government. The matter is sub-

judice before this Hon’ble Court and no objection or evidence was given

by plaintiff Rajesh Kumar Lohan. The validity of the Award was also not

challenged by the plaintiff.

5. That Raj Karan Lohan, the father-in-law of the deponent during

the pendency of the above noted suit to put the pressure upon the deponent

moved a false application before SHO (Economic Cell), Police Station

Sector-20, Panchkula, who sent a notice for making statement and

attendance which was received at night on 24.10.2017 by the family

members, in which the deponent has been directed to attend the police

station on 25.10.2017. On 25.10.2017, the deponent appeared before the

Investigation Officer, who again directed the deponent to come tomorrow

for making statement as well as after one week to join the investigation.

Although this fact was stated by the deponent that the earlier criminal

litigation as well as the civil suit between the parties is pending regarding

the same matter and now is at the final stage.

6. That investigation officer as well as police at the instance of Raj

Karan Lohan putting pressure upon the deponent and also threatening by

using coercive method, which amounts to contempt of this Hon’ble Court,

as the validity of the award is to be decided by this Hon’ble Court. During

the pendency of the civil suit, police has no power to see the validity of

award which is on the file of the suit pending before this Hon’ble Court. If

Raj Karan Lohan as well as Investigation Officer succeed to do so, the

deponent shall suffer an irreparable loss and the balance of convenience is

also in favour of the deponent, since the award has been produced by the

witness in original before this Hon’ble Court and the validity of award is

to be decided by this Hon’ble Court. Police has got no jurisdiction to

entertain and decide the validity of award which is the subject matter of
the civil suit pending before this Hon’ble Court, hence a prima facie case

is in favour of the deponent.

PANCHKULA
DATED: DEPONENT
VERIFICATION:
Verified that the contents of my above affidavit from paras No.1 to
6 are true and correct to my knowledge. No part of it is false and nothing
has been concealed therein.
PANCHKULA
DATED: DEPONENT