Delhi District Court
Hari Om Gupta vs Krishan Garg on 8 August, 2024
IN THE COURT OF CIVIL JUDGE - 03
WEST DISTRICT, TIS HAZARI COURTS, DELHI
Presiding Officer: Sh. Kautuk Bhardwaj, DJS
Suit No. 1548/2018 Digitally signed
CNR No. DLWT03-002751-2018 KAUTUK by KAUTUK
BHARDWAJ
In the matter of: BHARDWAJ Date: 2024.08.08
16:16:02 +0530
Dr. Hari Om Gupta
S/o Sh. Gopi Chand
R/o C-16, Bhagwan Dass Nagar,
Rohtak Road, New Delhi.
Also at : 80/57B, Ground Floor,
Malviya Nagar, New Delhi-110017.
................. Plaintiff
Vs.
Sh. Krishan Garg
S/o Sh. Gopi Chand
R/o C-16, Bhagwan Dass Nagar,
Rohtak Road, New Delhi.
.............. Defendant
Date of institution of Suit : 13/07/1995
Date on which judgment was reserved : 07/06/2024
Date of pronouncement of the judgment : 08/08/2024
JUDGMENT
1. The Case:
The present suit has been filed on behalf of the plaintiff seeking the relief of declaration in terms of agreement dated 17/10/1979 as to ownership and permanent injunction against covering the back portion, interfering with the use and enjoyment of the front portion as well as back portion of the suit premises.
2. Plaintiff's case:
Briefly stated, It is the case of the plaintiff that plaintiff and the defendant are the co-owner of the property CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 1 of 50 bearing no. C-16, Bhagwan Dass Nagar, Rohtak Road, New Delhi. In the said property, the ground floor is in the possession of the defendant and the first floor is in possession of the plaintiff. It is stated that earlier plot of land measuring 240 sq. yards was purchased jointly by the parties (plaintiff and defendant) with the uncle of parties namely Sh. Kale Chand S/o Sh. Mool Chand. Subsequently, the plot was mutually divided between the uncle and the parties. It is stated that since the plaintiff and the defendant were real brothers, the plot admeasuring 120 sq. yards was purchased by them jointly in the name of the defendant. The construction on the first floor was done by the plaintiff, whereas defendant constructed the ground floor with his own funds. The parties had entered into an agreement on 17/10/1979 in the presence of witnesses. As per the said agreement, the defendant had acknowledged to receive half of the price of the aforesaid land as well as the registration charges and also the funds for constructing first floor from the plaintiff. The mutual agreement for sharing the property was reached even prior to agreement dated 17/10/1979. It is averred that as per sanction plan of the plot, open space was left in the front side as well as back side of the property. The open portion on the back side was to be used jointly by the parties for common service. The stair case for the first floor was to be used by both the parties commonly. The grievance of the plaintiff leading to the filing of the present suit stems from the allegation that the defendants are illegally designing and covering up the back portion of the premises by constructing rooms therein. The defendant had also filed a suit for possession, damages, injunction and declaration. In the said suit, defendant had, inter alia, sought relief of declaration qua the nullity of agreement dated CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 2 of 50 17/10/1979. Consequently, the said suit was withdrawn by the defendant and the plaintiff had filed amendment to the original plaint. The amendment incorporates the subsequent events and the additional prayer for declaration as to ownership on the basis of agreement dated 17/10/1979. Based on these facts, the present suit has been filed.
3. Upon service of summons of the suit, the defendant contested the present suit of the plaintiff and filed Written Statement.
4. Defendant's case:
It is the case of the defendant that defendant is absolute owner of property bearing no. C-16, Bhagwan Dass Nagar, Rohtak Road, New Delhi in accordance with the sale deed registered on 03/04/1967. It is averred that the plaintiff being the younger brother of the defendant was in permissive possession of first floor of the said property and is not residing in the said property for the last more than 16 years. It is stated that the building at the ground floor was constructed in the year 1968-69 and at that time plaintiff was a minor. The entire sale consideration were made by the defendant and his uncle Sh. Kale Chand. Defendant had raised legal objection qua the agreement dated 17/10/1979 as hit by Section 17 of the Registration Act and Section 35 of the Stamp Act. He has stated that there is no requirement of keeping open space in front or in back portion of the suit property. Nonetheless all area at the ground floor i.e the open area in the front and at the back are in exclusive ownership and possession of the defendant. The defendant has also taken legal objection as to the relief of declaration being hit by Limitation Act, the evidence of the plaintiff being beyond pleadings CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 3 of 50 etc. Based on these facts, the defendant has sought dismissal of the present suit.
5. Reply to the written statement:
In his replication, plaintiff has asserted that he was a minor and further stated that the arrangement of co-ownership was earlier agreed as per agreement dated 24/02/1979. Plaintiff has stated that the sources for funding of the consideration amount was arranged from scholarship and selling of ancestral properties. It has been denied that plaintiff did not had means to contribute for the purchase and construction of the premises.
6. Issues: Upon completion of pleadings, the following issues were framed vide order dated 22/09/2012 by the Ld. Predecessor of this Court:-
1. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP
2. Relief 6(a). Additional issues : The following additional issues were framed vide order dated 07/03/2023 by the Ld. Predecessor of this Court:-
3. Whether the plaint is barred by limitation? OPD
4. Whether the present suit is barred by the provisions of Benami Transaction Act? OPD
5. Whether the plaintiff is entitled to the relief of declaration, as prayed for by the plaintiff in the prayer clause (a) as per the amended plaint? OPP CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 4 of 50 6(c). It is clarified that the additional issues were numbered as 1, 2, 3 as per order dated 07/03/2023, however, for the convenience, same are now numbered as 3, 4 & 5 respectively.
7. Plaintiff's Evidence:
7.1 To prove her case, plaintiff examined himself as PW- 1 and tendered his evidence by way of affidavit Ex. PW-1/A, before Court Commissioner (appointed by the court vide order dated 07/03/2023), wherein he reiterated the facts as mentioned in the plaint and relied upon the following documents: -
Sr. Documents Exhibit/Mark
No.
1 Original Certificate dated Ex. PW-1/1
21/11/1996 issued by Pandit
Hazari
2 Certified copy of sate deed dated Ex. PW-1/2
17/10/1968 registered on
13/11/1968
3 Certified copy of sale deed dated Ex. PW-1/3
03/04/1967
4 Original certificate dt. 25/06/1967 Ex. PW-1/4
5 Original of two certificate dated Ex. PW-1/5
14/10/1977 issued by IIT, Kanpur
6 Original of memorandum of family Ex. PW-1/6
settlement dated 24/02/1979
7 Original of memorandum of family Ex. PW-1/7
settlement dated 17/10/1979
8 Original of Will dated 17/10/1979 Ex. PW-1/8
9 Original GPA dated 17/10/1979 Ex. PW-1/9
executed by defendant
10 Original affidavit of late M.L. Garg Ex. PW-1/10
11 Original of notice dt. 22/07/1999 Ex. PW-1/11
CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 5 of 50
Sr. Documents Exhibit/Mark
No.
issued by Municipal Corporation
12 Copy of reply dated 01/09/1991 to Ex. PW-1/12
the notice dated 22/07/1991
13 Site plan Ex. PW-1/13
14 Three photographs showing the Ex. PW-1/14
illegal construction
15 Original of notice dt. 27/11/1996 Ex. PW-1/15
16 Original receipt for the payment of Ex. PW-1/16
Rs. 5,950/- towards property tax
17 Original receipt of Rs. 355/- dated Ex. PW-1/17
15/07/1987 towards water charges
18 Original of five receipts dated Ex. PW-1/18 (colly)
21/07/1987, 30/01/1967,
06/11/1997, 27/06/1995 &
04/12/1995 towards water charges
19 Original of bill dated 03/06/1997 Ex. PW-1/19
towards charges of the water
connection
20 Original receipt dated 24/08/1998 Ex. PW-1/20
issued by Delhi Jal Board (DJB)
21 Original eight bills issued by DJB Ex. PW-1/21 (colly)
towards water charges for the
periods :
01/01/2009 to 18/02/2009,
02/11/2006 to 05/01/2007,
26/08/2006 to 01/11/2006,
17/04/2004 to 20/07/2004,
16/10/2003 to 06/01/2004,
11/07/2003 to 15/10/2003,
27/04/2002 to 08/07/2002 &
17/01/2001 to 14/05/2001
CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 6 of 50
Sr. Documents Exhibit/Mark
No.
22 Original two receipts issued by Ex. PW-1/22 (colly)
DJB for the periods:
22/07/2000 to 18/10/2000 &
13/05/1999 to 28/09/1999
23 Printouts of six receipts issued by Ex. PW-1/23 (colly)
DJB dt. 30/03/2023, 05/10/2020,
13/02/2019, 04/01/2015,
11/10/2014 & 08/05/2013
24 Original receipt dt. 05/06/1987 for Ex. PW-1/24
Rs. 550/- w.r.t electricity charges
25 Original two receipts for the month Ex. PW-1/25 (colly)
of June 1995 and December 1995
towards electricity charges
26 Original of eight receipts for the Ex. PW-1/26 (colly)
months of June 2002, October
2001, February 2001, August 2000,
February 1999, April 1998,
December 1997 and October 1997
towards charges of electricity
connection
27 Original 13 receipts issued by Ex. PW-1/27 (colly)
BSES for the months of January
2015, July 2014, November 2014,
December 2014, March 2013,
April 2010, April 2009, December
2006, October 2006, April 2005,
October 2004, December 2003 &
August 2003
28 Printout of 30 bills issued by BSES Ex. PW-1/28 (colly)
for the months of January 2023 to
March 2023, January 2022 to
November 2022, January 2021,
March 2021 to June 2021, August
2021, October 2021, November
2021, February 2020, March 2020,
August 2020 to November 2020,
CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 7 of 50
Sr. Documents Exhibit/Mark
No.
September 2019 & December 2019
29 Printout of e-mail dated Ex. PW-1/29 (colly)
14/12/2022 issued by BSES
30 Copy of letter dated 27/11/2002 Ex. PW-1/30
issued by SHO Punjabi Bagh
31 Copy of letter dated 06/09/2013 Mark A
issued by SHO Punjabi Bagh
32 The plaint in suit no. 355/2012 Ex. PW-1/32
33 WS filed in CS 355/2012 Ex. PW-1/33
34 Amended WS filed in CS 355/2012 Ex. PW-1/34
35 Replication filed in CS 355/2012 Ex. PW-1/35
36 Amended replication filed in CS Ex. PW-1/36
355/2012
37 The order dated 22/09/2012 in CS Ex. PW-1/37
355/2012
38 The evidence affidavit filed by the Ex. PW-1/38
defendant in CS 355/2012
39 The order dated 27/04/2013 in CS Ex. PW-1/39
355/2012
40 The Certification u/s 65 B of Ex. PW-1/40
Indian Evidence Act
41 The statement given by the Ex. PW-1/41
defendant on the basis of which the
order dated 27/04/2013 was passed
in CS 355/2012
7.2 Further, plaintiff examined his witness PW-2 namely Sh.
Mahender, Record In-charge, Office of Sub Registrar-I, Kashmere Gate, Delhi, who brought the letter issued by Sub Registrar-I, Kashmere Gate, Delhi.CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 8 of 50
7.3 Plaintiff examined his PW-3 namely Sh. Ramesh Chander Bhatt, Sr. APO, BSES, Delhi, who brought the documents Ex. PW-3/1 to Ex. PW-3/3, Ex. PW-3/DX1 (colly), Ex.
PW-3/DX2, Ex. PW-3/DX3.
7.4 Plaintiff examined his witness PW-4 namely Sh. Chandan Kumar, Sr. Assistant, Delhi Jal Board, Delhi, who brought the document Ex. PW-4/1.
7.5 Plaintiff examined his witness PW-5 namely Sh. Manish, Associate, State Bank of India, NCERT Branch, who brought the documents Ex. PW-5/1 to Ex. PW-5/3.
7.6 Plaintiff examined his witness PW-6 namely Sh. Amit, Clerk, Office of Deputy Commissioner, Rohtak, Haryana, who brought the documents Ex. PW-6/A. 7.7 PW-1, PW-3 & PW-4 were duly cross-examined by the Ld. Counsels for the defendant. No other witness has been produced by the plaintiff and PE was closed vide order dated 18/01/2024.
8. Defendant's Evidence:
8.1 As per submissions recorded in order dated 18/01/2024, defendant did not lead defence evidence (DE) and DE was closed vide order dated 18/01/2024.
9. Now, for the ease of comprehending the operative part of this judgment, it has been divided into following parts:
1. Nature of relief and legal yardstick.
2. Material facts upon which the parties have relied to prove/dispute the existence of legal right and the entitlement of relief.CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 9 of 50
3. Legal Objections taken by the Defendant.
4. Appreciation of evidence led qua the material facts/adjudication on merits
9.1 Nature of relief and legal yardstick 9.1.1 The plaintiff has filed the present suit, essentially seeking the relief of declaration as to ownership of suit property bearing no. C-16, Bhagwan Dass Nagar, Rohtak Road, New Delhi in terms of agreement dated 17.10.1979. Further, a consequential relief of permanent injunction is being sought against interference in the use and enjoyment of common portion on front as well as back of the suit property.
9.1.2 The next consideration is the legal parameter that the plaintiff needs to satisfy for grant of the said relief. It is a settled law that for any relief to be successfully claimed the party has to establish the entitlement qua the same. Thus, in the present case the plaintiff was required to show:
a. Plaintiff is entitled as to any legal character or to any right as to any property;
b. Defendant is denying or interested to deny, his title to such character or right.
9.1.3 In addition, for the relief of injunction the jurisdictional facts to be satisfied are:
a. Existence of a legal right in favour of plaintiff;
b. Palpable threat to that legal right, thereby entitling for the relief of injunction.CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 10 of 50
9.2 Material facts upon which the parties have relied to prove/dispute the existence of legal right and the entitlement of relief 9.2 (A) Material averments of the plaintiff:
Purchase of plot no. 16, Block G, Bhagwan Dass Nagar, New Delhi- Parties (plaintiff and defendant) had jointly purchased the said plot ad-measuring 240 Sq yard with Sh. Kale Chand. Subsequently, the plot was mutually divided between Kale Chand on the one hand and defendant and the plaintiff on the other hand (area of 120 Sq yard each). The plot was purchased by the parties jointly (plaintiff and defendant), however it was in the name of defendant as the parties were real brothers.
Execution of agreement dated 17/10/1979- Plaintiff had borne the price of half of the share of land (ad-measuring120 sq. yards), registration charges and also the funds for construction of first floor of the property. An agreement/settlement dated 17/10/1979 was executed between the parties acknowledging the said transaction. Parties were in occupation and in possession of their respective shares (Ground floor occupied by the defendant and first floor occupied by the plaintiff), even prior to the agreement.
Common usage of the open back and front portions of the property and subsequent threat by the defendant- Parties have been using the common portions in front as well as back, as per the mutual agreement and sanctioned plan of the property. Defendant has given multiple threats of covering CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 11 of 50 the open portion of the premises. A subsequent threat was also given by the defendant (after withdrawing his suit for declaration, possession etc), regarding closing of the back portion and construction of floors on the suit property.
The plaintiff has further elaborated upon these material averments in his replication, the relevant facts are:
Plot was purchased in the name of defendant as the plaintiff was minor and the defendant was the elder brother.
The equal contribution of the parties in purchase of the plot was acknowledged by the defendant in agreement dated 17/10/1979 as well as agreement dated 24/02/1979.
Plaintiff had the means to contribute equally towards the purchase and construction of the suit property. He was earning scholarship and also the parties had sold ancestral property (including land, houses and two shops).
Plaintiff used to pay property taxes of the suit property.
9.2(B) Material averments of the defendant:
Purchase of plot no. 16, Block G, Bhagwan Das Nagar, New Delhi- Defendant along with Sh. Kale Chand had jointly purchased the ad-measuring 240 Sq yard. Subsequently, the plot was mutually divided between Kale Chand and defendant (each owning 120 Sq Yard). Defendant is absolute owner of property bearing no. C-16, Bhagwan Das Road, Rohtak road, New Delhi and plaintiff was in permissive possession of the suit premises.
Invalidity of agreement dated 17.10.1979 - The agreement dated 17/10/1979 is invalid and void as it was signed by the CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 12 of 50 defendant under undue influence and was without free consent.
Non contribution of the plaintiff in purchase of suit property- No contribution was made by the plaintiff towards purchase of property under registered sale deed dated 29/03/1967 (registered on 03/04/1967). Plaintiff was a student/minor at the time of purchase and construction.
The judgment would first be dealing with the legal objections (and the issues framed thereto) and then would proceed to decide the contentions on the merits.
9.3 Legal Objections taken by the defendant 9.3.1 In addition to the factual rebuttal of the case of the plaintiff, defendant had resorted to the following legal objections:
Documents tendered in evidence have not been proved in accordance with law.
Evidence led by PW-1 by way of affidavit is beyond pleadings.
Amendment as allowed vide order dated 19.01.2018 would not relate back to date of filing.
Simpliciter suit for injunction was not maintainable.
Suit is hit by the provisions of the Benami Transaction (Prohibition) Act, 1988.
Documents tendered in evidence have not been proved in accordance with law:
9.3.2 It is the contention of the defendant that a specific objection as to the admissibility, tendering and mode of proof of the documents has been raised by the defendant before the Local CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 13 of 50 Commissioner appointed for recording of evidence. The contention accrues from the grievance that the plaintiff is attempting to prove the documents which are not part of the judicial file pertaining to the present suit. It is argued that mere tagging of the judicial file would not make it part of the record.
Accordingly, it is prayed that none of these documents can be considered as evidence.
A. The adjudication of the said objection requires recapitulation of the relevant events witnessed during the course of trial in Suit No. 1548/2018 and Suit No. 355/2012:
Plaintiff had filed the present suit on 13/07/1995 seeking the relief of permanent injunction against the defendant.
Defendant, during the pendency of plaintiffs suit, had filed another suit (before Hon'ble DHC on 28.10.1996) against the plaintiff seeking, inter alia, possession, injunction and declaration.
Both the suits were consolidated by an order dated 17.12.2012.
Defendant had withdrawn his suit and the same was allowed vide order dated 27.04.2013.
An application for tagging of the files (Suit No. 1548/2018 and Suit No. 355/2012) was moved by the plaintiff and subsequently the Ld. Predecessor of this court had summoned the record of CC no. 355/12.
Hon'ble High Court of Delhi, while allowing the transfer petition (CM(M) 862/2018) filed by the defendant, observed that the record of the defendant's suit shall be tagged along with the present suit.
CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 14 of 50 Review application qua the tagging of the file, was dismissed by the Hon'ble High Court of Delhi and it was observed that proving of the document is to be done as per the law and the plaintiff shall file certified copies if required.
Application filed by plaintiff seeking directions for making the documents/pleadings/applications/replies etc in CS no. 355/2012 as part of the record in present suit or in alternative passing directions for taking these documents on record. The court allowed the application and in effect the plea for relying upon the documents in CS no. 355/2012.
B. Findings: 9.3.3 At the heart of the present objection is the act of the
plaintiff in placing reliance upon and tendering of documents which formed part of CS no. 355/12. The said issue was raised by the parties and categorically dealt by the Ld. Predecessor of this court in its order dated 19.05.2023. Ld. Counsel has vehemently relied upon the order of the Hon'ble High Court dated 17.12.2018. The Hon'ble Court while dismissing the revision filed by the defendant qua tagging of the files, had observed that it would be for the plaintiff to prove the records sought to be proved in relation to CS no. 355/2012 as per procedure by production of certified copies of the record, if required. However, both the parties relying upon the same observation had raised rival contentions regarding the present objection. What becomes pivotal is how the Ld. Predecessor of this court adjudicated the said issue in its order dated 19.05.2023. The relevant excerpt of this order has been reproduced below:
"From bare reading of the said order of the Hon'ble High Court of Delhi, it is clear that further liberty cum opportunity was granted to CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 15 of 50 the plaintiff to prove the record sought to be proved in relation to CS no. 355/2012 as per the procedure by production of certified copies, if required. Meaning thereby that either the files may be remained tagged together for the purpose of relying upon the documents filed in CS no. 355/2012 or the certified copies of the same may be filed in the record. Plaintiff being the dominus status has right to choose either of the courses and since the evidence in the present matter is being conducted through an LC and is already at an advance stage and further the record from CS no. 355/2012 is already being summoned in the present matter vide the order of the said Court dated 19.04.2014.
In view of the above, this Court finds no reason to interfere in the manner of proceedings which is already being taken place. The application of the plaintiff under Section 151 CPC is hereby disposed off as allowed to the effect that the case file of CS no. 355/2012 be summoned on each date of hearing to be relied upon in the present suit, as it is already being done till date."
9.3.4 This court while addressing the issue of placing reliance on documents in CS no. 355/2012 interpreted the order of the Hon'ble High Court as giving the plaintiff an opportunity cum liberty to either rely upon the file which has already been tagged together or to file certified copies of the record. The court considering the prayer of the plaintiff to exercise the former option, went on to direct the summoning of the tagged file CS no. 355/2012 on each dated of hearing.
9.3.5 Thus, it can be summarised that there is an order in favour of the plaintiff which grants him the discretion to rely (Exhibiting/Marking) on the documents/record of the tagged file CS no. 355/2012. The plaintiff on the strength of the said order has exhibited 26 documents which were part of the CS no. 355/2012. The objection of the defendant that the plaintiff ought to have filed certified copies of the document upon which he relies, faces the categorical observation of court in order dated 19.05.2023. During the course of the argument a specific query was put to the Ld. Counsel for the defendant qua the said order and its implication. Ld. Counsel for the defendant stated that although he has CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 16 of 50 challenged the said order and the same is still sub-judice before the Hon'ble High Court, however he wishes that the objections be adjudicated as per the record. It was also informed by the Ld. Counsel for the plaintiff that on the date fixed for hearing before the Hon'ble High Court an adjournment was sought by the counsel for the Defendant, despite being aware of the present matter being fixed for final arguments. Be that as it may, the Defendant cannot have his cake and eat it too. Once a conscious choice has been taken by the Defendant to pursue the present matter as per the existing record, notwithstanding the pending appeal, the defendant cannot be allowed to question the record itself. Questioning the legality of an order of this very court at the stage of final arguments is impermissible. There is no gainsaying that the court cannot sit on appeal (or in revision, in the absence of an invocation thereto) of its own orders. In addendum, without delving into the merits of the order dated 19.05.2023, let us momentarily presume that this court erred in the said order. Can now the plaintiff be made to face the consequences of the same? An order was passed and a party on the strength of the said order has acted accordingly. Such act of the party in pursuance to court's order cannot now be put into question. Doing otherwise, would be inflicting great injustice on the party. It is not that the other party was left remediless, the defendant very well had the opportunity of pursuing the appeal before the Hon'ble High Court, however the said remedy was effectively waived. It would be expedient to record that apart from the explicit submission of the Ld. Counsel for the defendant to dispose the matter as per record, even otherwise in the Ten dates during which final argument was heard no adjournment was sought by the counsel for disposal of the appeal. Hence, now the CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 17 of 50 objection of the defendant would be hit by the oldest legal dogmas Actus Curiae neminem gravabit i.e. Act of the court shall prejudice no one. In conclusion, this court has already allowed the reliance on the documents filed in CS no. 355/2012 in alternate to filing of certified copies. Accordingly, there is no illegality in tendering of the documents forming part of the tagged file CS no. 355/2012. The aspect as to whether the documents have been proved, shall be adverted to later.
Evidence led by PW-1 by way of affidavit is beyond pleadings:
9.3.6 It is argued by the defendant that the deposition of the plaintiff is neither part of the plaint or amended plaint. Ld. Counsel for the defendant has relied on the time tested principle that no evidence beyond pleadings is permissible. The said principle has been recognised by the Hon'ble Courts of records on numerous occasion and the defendant has in specific relied upon " Siddik Mohamed Shah vs. Saran & Ors. AIR 1930 PC 57", "Nand Kishore Lalbhai Mehta vs. New Era Fabrics Pvt. Ltd. reported as (2015) 9 SCC 755 and (2020) 10 SC 729", "Biraji @ Brijraji & Anr. vs. Surya Pratap & Ors." and "Prakash Rattan Lal vs. Monkey Ram 166 (2010) DLT 629.
9.3.7 Ld. Counsel for the defendant had objected to the following paragraphs of the evidence affidavit of PW-1 as being beyond pleadings, paragraph no. 2 to 17, paragraph no. 21-29, paragraph no. 31-42, paragraph no. 44-48 and paragraph no. 50 to
51. 9.3.8 These objected paragraphs of the evidence affidavit have to be tested on the touchstone propounded in the afore cited cases relied by the defendant. It would be profitable to reproduce CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 18 of 50 the observation of the Hon'ble Apex Court in the case of Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491 : (2009) 5 SCC (Civ) 927 : 2008 SCC OnLine SC 1445 at page 496, the cited observation engulfs all the relevant principle relied upon by the defendant:
"12. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.
13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.
17. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 19 of 50 cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad [AIR 1966 SC 735] and Ram Sarup Gupta [(1987) 2 SCC 555 : AIR 1987 SC 1242] referred to above and several other decisions of this Court following the same cannot be construed as diluting the well-settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo motu."
9.3.9 The table drawn below deals with the paragraphs of the evidence affidavit qua which objection has been taken by the Defendant. It succinctly puts the substance of the averment and gives a finding as to whether they're part of the pleadings or are averred beyond pleadings.
Evidence Substance of the averment Finding Affidavit-
Para no.
2 to 5 Elaborates the family tree of the parties. In Facts averred are addition, avers that plaintiff used to foundational facts. It contribute out from his earning/scholarship. flows from the pleading that the parties are related to each other by blood and the plaintiff was minor at the relevant time.
CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 20 of 50Evidence Substance of the averment Finding Affidavit-
Para no.
6 to 13 Enlists the ancestral properties of the parties, Plaintiff has pleaded this sale proceeds of which was used for specific fact in his purchase of suit premises. In addition, the Replication (Additional scholarship earned by the plaintiff has also pleas), which has only been averred. been elaborated upon in the affidavit. The factum of scholarship earned by the plaintiff has also been averred in the replication.
14 to 16 Gives the factual backdrop in which the suit The plea of purchase of premises was decided to be purchased by the the suit premises along parties along with Sh. Kale Chand with Kale Chand is the foundation of the plaintiff's case. The elaboration of the backdrop would fall within the genesis of this plea.
17 Avers the incident of entering into sale The said plea forms the agreement dated 03.04.1967 foundational plea of the plaintiff.
21 to 23 The averment enlists the earning capacity of This was pleaded in the the plaintiff for the relevant period. replication. (Additional CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 21 of 50 Evidence Substance of the averment Finding Affidavit-
Para no.
plea, para 4)
24 to 25 Construction of the floors and funding qua Plea taken at paragraph
the same. no. 3 of the plaint.
27 to 36 Gives the factual backdrop in which family The plea of family
settlement dated 24.02.1979 and 17.10.1979 settlement forms the
was entered. foundation of the
plaintiff's case and finds
mention in the plaint as
well as the replication.
The issue as to whether
the same is agreement or
settlement has been
adverted to later.
38-40 Averments pertaining to construction of the Plea of construction of
first floor and income of the plaintiff. first floor from the
plaintiff's earning has
been taken in the plaint.
The averments detail out
the earnings.
41-43 Avers regarding the usage of the common Plea qua the usage of the
spaces in the back and front of the property, common space has been and its usage. taken in the plaint and it is on the strength of CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 22 of 50 Evidence Substance of the averment Finding Affidavit-
Para no.
same that injunction is being sought.
45 Details out the possession of the suit premise The occupation of the and the other premises occupied by the property by the plaintiff plaintiff. has been averred in the initial paragraphs of the plaint and has not been disputed by the defendant who had also filed an eviction suit.
46-48 Avers the payment of property tax and other The plea of payment of
utilities bill property tax was taken in
replication, after the
same was denied in
written statement. The
other averments qua
payment of utility bills
would form the
evidentiary proof of plea
that plaintiff has been in
possession of property.
50-51 Avers the threat of construction on the The averment forms part
common space of the cause of action for
filing of the present suit
CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 23 of 50
Evidence Substance of the averment Finding
Affidavit-
Para no.
and has been duly raised
in the plaint.
9.3.10 The above analysis would disclose that the paragraphs
objected by the defendant are part of the pleadings taken by the Plaintiff and no paragraph was found to be beyond pleadings. It appears form the nature of objection taken by the Ld. Counsel for the defendant that their grievance accrues from the fact that some of the facts mentioned in the evidence affidavit does not find mention in the plaint or replication. There is no gainsaying that evidence affidavit need not be a verbatim copy of the plaint. The object as observed in Bachhaj Nahar (supra) is to ensure that the parties are not taken by surprise and each side is aware as to the questions likely to be raised or considered. If a particular plea is taken the party cannot be expected to enlist all the evidences in support of that plea, in the pleadings itself. The same would be contrary to the fundamental principles of pleading as provided under Order VI Rule 2 of the CPC. The essence of the rule is to plead the material facts. As observed above, the defendant was aware of the fundamental pleas form which the facts have been averred. Accordingly, the objection of the defendant when tested on this touchstone falls flat.
9.3.11 On similar lines, defendant had also taken the plea that the replication sets up a new fact and has relied upon the judgment of the Hon'ble High Court in the case of M/s Anant CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 24 of 50 Constructions Ltd. vs Shri Ram Niwas (See: Suit no. 1699/82). No objection was taken by the defendant regarding the same at time of filing of replication and has been raised at the stage of final arguments. Nonetheless, the defendant has failed to show that a new case has been set up by the plaintiff in his replication. Rather the facts averred in the replication are in response to the pleadings made in the written statement, which is within the permissible limits prescribed by Anant constructions (supra). Thus, there appears to be no merit in the said submission.
Amendment as allowed vide order dated 19.01.2018 would not relate back to date of filing:
9.3.12 The said objection was framed in the form of an issue:
"Issue no. 3 :Whether the plaint is barred by limitation? OPD"
9.3.13 In this regard defendant has submitted that the relief of declaration was allowed to be incorporated in the plaint by way of amendment vide order dated 19.01.2018. Article 58 of the Limitation Act, 1963 has been adverted to and it has been contended that the relief of declaration can be filed by the aggrieved party within three years from the date when right to sue accrues for the first time. It is accordingly the case of the defendant that the suit having been filed on 12.07.1995 and the amendment having been applied on 26.05.2013, would be barred by the law of Limitation. Reliance in this regard has been placed on the case of L.C. Hanumanthappa vs. H.B Shivkumar (2016) 1 SCC 332. 9.3.14 Let us first begin with the relevant excerpts of the L.C. Hanumanthappa (Supra) which has been relied by both the parties. The Hon'ble Court had discussed at length the doctrine of CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 25 of 50 relation back as applicable to the amendment under Order VI Rule 17 of the Code and its non-application to the given set of facts. The same has been reproduced below:
"15. As early as in the year 1909, the Bombay High Court in Kisandas Rupchand v. Rachappa Vithoba Shilwant [ILR (1909) 33 Bom 644] , held as follows: (ILR p. 655) "... All amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties ... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?"
17. Twenty years later, the Privy Council in Charan Das v. Amir Khan [(1919-20) 47 IA 255 : (1921) 13 LW 49] , stated the law as follows: (IA p. 262) "... That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases ... where such considerations are outweighed by the special circumstances of the case...."
18. This statement of the law was cited with approval in L.J. Leach & Co. Ltd. v. Jardine Skinner & Co. [1957 SCR 438 : AIR 1957 SC 357] SCR pp. 450-51.
19. The facts in the aforesaid case were that the plaintiffs had, on the basis of the material facts stated in the plaint, claimed damages on the basis of the tort of conversion. It had been held by the courts below that on the pleading and on the evidence such claim must fail. At the stage of arguments in the Supreme Court, the plaintiff applied to the Supreme Court for amendment of the plaint by raising an alternative plea on the same set of facts, namely, a claim for damages for breach of contract for non- delivery of the goods. The respondents in that case resisted the said plea for amendment, stating that a suit based on this new cause of action would be barred by limitation. This Court, while CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 26 of 50 allowing the said amendment, stated that no change needs to be made in the material facts pleaded before the court all of which were there in support of the amended prayer. In any case, the prayer in the plaint as it originally stood was itself general and merely claimed damages. Thus, all the allegations which were necessary for sustaining a claim of damages for breach of contract were already there in the plaint. The only thing that was lacking was the allegation that the plaintiffs were in the alternative entitled to claim damages for breach of contract. In the facts of the said case, this Court held: (L.J. Leach case [1957 SCR 438 : AIR 1957 SC 357] , SCR p. 450 : AIR p. 362, para 16) "16. It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice."
20. It is clear that this case belonged to an exceptional class of cases where despite the fact that a legal right had accrued to the defendant by lapse of time, yet this consideration was outweighed by the special circumstances of the case, namely, that no new material fact needed to be added at all, and only an alternative prayer in law had necessarily to be made in view of the original plea in law being discarded.
29. Applying the law thus laid down by this Court to the facts of this case, two things become clear. First, in the original written statement itself dated 16-5-1990, the defendant had clearly put the plaintiff on notice that it had denied the plaintiff's title to the suit property. A reading of an isolated paragraph in the written statement, namely, Para 2 by the trial court on the facts of this case has been correctly commented upon adversely by the High Court in the judgment under appeal. The original written statement read as a whole unmistakably indicates that the defendant had not accepted the plaintiff's title. Secondly, while allowing the amendment, the High Court in its earlier judgment dated 28-3-2002 [L.C. Hanumanthappa v. H.B. Shivakumar, RFA No. 415 of 1999, decided on 28-3-2002 (KAR)] had expressly remanded the matter to the trial court, allowing the defendant to raise the plea of limitation. There can be no doubt that on an application of Khatri Hotels (P) Ltd. [(2011) 9 SCC 126 : (2011) 4 SCC (Civ) 484] , the right to sue for declaration of title first arose on the facts of the present case on 16-5-1990 when the original written statement clearly denied the plaintiff's title. By 16-5-1993 therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 27 of 50 warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away."
9.3.15 The upshot of the above discussion is that an amendment which seeks to incorporate a time barred claim ought to be refused. However, in special circumstance and in exceptional cases such an amendment may be allowed by invoking the doctrine of relating back. There is no gainsaying that once such amendment is allowed to be incorporated it would relate back to the date of the suit, provided the court orders otherwise. (See: Sampath Kumar vs Ayyakannu & Ors. (2002)7 SCC 559 at paragraph 10). Now, this court in its order dated 19.01.2008, had taken into account the special circumstances and had applied the doctrine thereby relating back the amendment to the date of filing of the suit. The reasons have been discussed henceforth.
9.3.16 The special circumstances facilitating invocation of the doctrine are on the basis of two counts. Firstly, the withdrawal of the suit filed by the defendant. The defendant, during the pendency of plaintiffs suit, had filed another suit (before Hon'ble DHC on 28.10.1996) against the plaintiff seeking, inter alia, possession, injunction and declaration. One of the grounds raised by the defendant in his suit (plaintiff therein) was qua the nullity of instrument dated 24.02.1979 and 17.10.1979, which subsequently was also framed as an issue. It would be apt to repeat that the plaintiff in the present suit seeks declaration as to ownership (added by the impugned amendment) on the basis of these very instruments. The respective suits of the parties was consolidated vide the order dated 17.12.2012. Subsequently, defendant had withdrawn his suit sans liberty to file afresh, the same was allowed vide order dated 27/04/2013. The withdrawal of defendant's suit CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 28 of 50 would have certainly left the plaintiff in a precarious situation and necessitated the impugned amendment. As long as the instrument dated 24.02.1979 and 17.10.1979 was under challenge by the defendant, there was no occasion for the plaintiff to separately make a claim in his suit for declaration on the basis of the said document, as both the claims would have necessarily reached the same end. Once the claim of the defendant was abandoned and the amendment was necessitated, the defendant cannot cry foul on the ground of belated amendment, which in fact is an act compelled by his own conduct.
9.3.17 Secondly and more importantly, the impugned amendment did not introduce a new fact nor the defendant was taken by surprise by the impugned amendment. It essentially encapsulates the subsequent events i.e. filing of the suit by the defendant and its withdrawal and the addition of the relief of declaration. The relief of declaration, in essence is based on the facts that were already part of the original plaint. The foundational fact of co-ownership on the basis of instrument dated 17.10.1979 is part of the un-amended pleadings and also forms the basis of amended relief. The facts of L.C. Hanumanthappa (Supra) are distinct for the twin reasons discussed above. Moreover, this court in its order dated 19.01.2008 did not reserve the right to take plea of limitation, unlike the case of L.C. Hanumanthappa (Supra). The doctrine of relation back would be applicable and the amended relief of declaration would not be hit by limitation.
9.3.18 Accordingly, this issue no. 3 is decided in favour of the plaintiff and against the defendant.
CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 29 of 50Simpliciter suit for injunction was not maintainable:
9.3.19 It has been argued by the Ld. Counsel for the defendant that the suit was initially filed by the plaintiff for the simpliciter relief of injunction, however since a cloud has been casted upon the title of the plaintiff, a simpliciter suit for injunction was barred as per law. He has placed his reliance on the judgment of the Hon'ble Supreme Court in the case of Anathula Sudhakar vs. P. Buchi Reddy (dead) by LRs & Ors. AIR 2008 SC 2033. 9.3.20 It is apparent that the said objection is a follow up argument to the contention qua the relief of declaration being barred by limitation. It has already been discussed at length as to how the relief of declaration is not barred by limitation and consequently the issue was decided in favour of the plaintiff. Thus, the record in its present position demonstrates that the plaintiff has sought twin reliefs of injunction as well as declaration as to ownership on the basis of certain documents. It is not in dispute that since the sale deed qua the suit premises is in the name of defendant, a cloud has been casted upon the plaintiff's title, however once the relief of declaration as to ownership has been incorporated in the plaint the mandate of Anathula Sudhakar (supra) effectively stood satisfied. Hence, there is no ground for holding it non-maintainable on this ground.
Suit is hit by the provisions of the Benami Transaction (Prohibition) Act, 1988:
9.3.21 The said objection was framed in the form of an issue:
"Issue no. 4: Whether the present suit is barred by the provisions of Benami Transaction Act? OPD"CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 30 of 50
9.3.22 At outset, it would be apposite to record that Benami Transaction (Prohibition) Act, 1988 has been amended by The Benami Transactions (Prohibition) Amendment Act, 2016. However, the core issue herein pertains to S.4 of the Act and the exceptions thereto, which have virtually remained unaffected by the amendment. (Integration of the exceptions in section 2(9) of the Act).
9.3.23 This particular defence appears to be a mere shot in the dark. The central theme of defendant's defence is that the suit property was jointly purchased along with Sh. Kale Chand. That, the plaintiff had neither the capacity nor had made any contribution towards the sale proceed. Per contra, plaintiff does not deny the contribution made by the defendant, rather he asserts that an equal contribution was made by him as well. The evidentiary appreciation of the said fact will be adverted to later.
9.3.24 Thus, notwithstanding the proportion of contribution made by the defendant, the admitted position of both the parties is that the defendant had in fact made contribution to the sale proceed. Once, this is shown the Benami Transaction (Prohibition) Act, 1988 itself would cease to apply. The justification for the said observation can be gathered from the intent/object behind the Act itself. The same has been elaborately dealt by the Hon'ble Supreme Court in the case Union of India v. Ganpati Dealcom (P) Ltd., (2023) 3 SCC 315 : (2023) 3 SCC (Cri) 798 : (2022) 447 ITR 108 : 2022 SCC OnLine SC 1064 at page 342. The court while discussing the history and object of the Act, observed the following:
"Introduction to practice of properties held benami in India CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 31 of 50
14. Having heard the parties, it is necessary for this Court to trace the history of benami transactions in India. The term "benami transaction" generally implies that one purchases the property in the name of somebody else i.e. a name lender, and the purchaser does not hold beneficial interest in the property. Literally, "benami" means "without a name". The simplest of example is if person A (real owner) purchases a property from B in the name of C (benamidar/ostensible owner), wherein A exercise rights/interest over the property.
Framework under the 1988 Act
30. This brings us to the statutory framework under the unamended 1988 Act, having nine sections. Section 2(a) defines "
benami transactions" as any transaction in which property is transferred to one person for a consideration paid or provided by another person. The law chose to include only tripartite benami transactions, while bipartite/loosely described as benami transactions, were left out of the definition. Reading the aforesaid definition to include sham/bipartite arrangements within the ambit would be against the strict reading of criminal law and would amount to judicial overreach.
31. The above definition does not capture the essence of benami transactions as the broad formulation includes certain types of legitimate transactions as well. The transferee/property holder's lack of beneficial interest in the property was a vital ingredient, as settled by years of judicial pronouncements and common parlance, and found to be completely absent in the definition given in the Act."(emphasis supplied) Furthermore, Hon'ble Karnataka High Court in M. Printer v. Marcel Martins, 2001 SCC OnLine Kar 224 : ILR 2002 Kar 3757 : 2002 AIR Kant R 1026 : AIR 2002 Kar 191 : (2002) 4 ICC 157 : (2001) 7 Kant LJ 414 at page 3777, while laying down the ingredients of a benami transaction, observed as follows:
28. It is in this background we have to examine each transaction.
In view of the fact that benami transaction has been now defined under the Act if any transaction is held to be hit by the provisions of the said Act, the said transaction should satisfy the requirements of benami transaction as defined under the Act. The first and the foremost requirement is that a property should have been transferred in the name of a person for consideration paid or provided by another person. In other words, the consideration for the transaction should not have flown from the person in whose name the property is purchased. If the person in whose name the property is purchased also has contributed consideration for purchase of the property in his name along with others whose name is not reflected in the sale deed, it would not amount to a benami transaction as defined under the Act.
29. Secondly the object of such purchase, namely whether the property is purchased in the name of a person with the intention of evading public revenue and whether there is any dishonesty in not CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 32 of 50 mentioning the names of the real contributors of the fund for purchase of the property is to be looked into. If the intention to purchase the property is to avoid payment of any tax or to conceal any unaccounted income, then before applying the provisions of the Act, a careful consideration of the nature of the transaction has to be looked into."
9.3.25 The said judgment of the Hon'ble Karnataka High Court was affirmed by the Hon'ble Apex Court in Marcel Martins v. M. Printer, (2012) 5 SCC 342.
9.3.26 The Hon'ble courts underlined the essence of the benami transaction as a transaction wherein the benamidar/ transferee has no beneficial interest in the concerned property. It was also explicitly observed that if the person in whose name property has been purchased is one of the contributory to the transaction, then such transaction would not be hit by the provisions of the Act. In the present facts, the defendant has not just contributed to the sale purchase (partial or in full) but is also reaping benefits of the sale transaction by residing in purchased premises. Further, the plaintiff has also been able to show that he had paid the part consideration amount (the appreciation and the proof of the said fact have been discussed in detail and is not being reproduced for the sake of brevity). Hence, the presence of beneficial interest of both the parties in the property is conspicuous in the admitted facts of the present case as well as facts proved by the plaintiff and the case of the plaintiff is not hit by the provisions of the Benami Transaction (Prohibition) Act, 1988.
9.3.27 Based on the above discussion, the afore cited issue can be safely concluded to be decide in favour of the plaintiff and against the defendant. It would be profitable to record that the plaintiff, in alternative, had also argued that the impugned transaction even if assumed to be of benami in nature would fall CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 33 of 50 within the exception of s. 4(3) of the Act, as it was based on the trust or fiduciary relationship with the defendant, who is the brother of plaintiff. Ld. Counsel for the Defendant during the course of his arguments, had pleaded that the objection would succeed on two counts. Firstly, that the necessary pleadings qua the applicability of the exceptions had not been incorporated in the plaint. He has relied upon Hemant Satti vs Mohan Satti & Ors. 2013 (139) DRJ 391 in this regard. Secondly, it is argued that even on merits the exceptions would not save the transaction in question. Reliance has been placed on Amar N Gugnani vs. Naresh Kumar Gugnani 2015 SCC OnLine Del 11248. 9.3.28 There is no gainsaying that once it has been observed that transaction in question is not a 'Benami Transaction' for the purposes of the Act, the court need not delve into the question as to whether the transaction would otherwise be saved by the exceptions provided in the Act. However, for the holistic adjudication of the arguments raised, let us touch upon the arguments raised by the defendant.
9.3.29 There appears to be no substance in the contention of the plaintiff on the applicability of the exception. The plaint categorically records that the plaintiff was a minor at the relevant time and the fact that the parties shared a blood relation, defendant being the elder brother. In fact, the entire case of the plaintiff revolves around the fact that property was purchased for the joint beneficial interest of the parties. The facts of Hemant Satti (supra) is distinct, therein the party at belated stage had raised the plea that the property in question was purchased in the name of benamidar and the entire consideration was paid by the plaintiff. Similarly, the dictum of Amar N Gugnani (supra) would not come to the aide CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 34 of 50 of the defendant. The Hon'ble court therein had distinguished the case from Marcel Martins (supra) on the ground that the latter was based on involuntary transaction. The raison d'être for the said decision was that the party, notwithstanding the fiduciary relation, had voluntarily paid the consideration amount and hence, the transaction would fall within the mischief prescribed under s. 4 of the Act. In the present facts, the aspect voluntariness is amiss. It is an admitted position that the plaintiff was a minor at the time of the impugned transaction. It is unconscionable to impute voluntariness of the transaction upon a minor. Thus, the argument of the defendant in this regard shall fall and even on merits the case of the plaintiff shall be saved by the exceptions to Section 4 of the Act.
9.3.30 Accordingly, for the reasons cited above the issue no. 4 is decided in favour of the plaintiff and against the defendant.
9.4 Appreciation of evidence led qua the material facts/adjudication on merits 9.4.1 The judgment would now proceed to adjudicate the present case on its merits. In this process, the court would be giving its finding on the following issues:
Issue no. 1: Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP Issue no. 2: Relief Issue no. 5: Whether the plaintiff is entitled to the relief of declaration, as prayed for by the plaintiff in the prayer clause
(a) as per the amended plaint? OPP 9.4.2 It would be recapitulated, that the plaintiff is seeking the relief of declaration as to ownership of suit property bearing CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 35 of 50 no. C-16, Bhagwan Das Road, Rohtak road, New Delhi in terms of agreement dated 17.10.1979. Further, a consequential relief of permanent injunction is being sought against interference in the use and enjoyment of common portion on front as well as back of the suit property.
9.4.3 The material facts and evidence on the basis of which the plaintiff seeks the above said entitlement has been reiterated briefly henceforth.
a. Plaintiff had contributed to the sale consideration for the purchase of suit premises. It is stated that the agricultural land and two shops were sold and the sale consideration received was used to purchase 50 % share in the suit premises ad-measuring 120 square. yards. These properties are stated to be part of HUF. Two shops were sold to Sh. Pandit Hazari, for a consideration of Rs. 5,300/- in January 1967 and the said consideration was used for construction of ground floor on the suit premises. Plaintiff has stated to have witnessed the said transaction. Further, a certificate dated 21.11.1996 was also issued by the Pandit Hazari confirming the sale transaction has also been exhibited as Ex. PW-1/1. Further, the plaintiff had sold an agricultural land to Sh. Nafe Singh and Ram Chander for a sum of Rs. 2,500/- and the consideration amount was paid in January 1967. The sale deed was registered after the plaintiff attained majority, the same is exhibited as Ex. PW-1/2. Plaintiff had also secured scholarship in 1966, in pursuance of which he was given an amount of Rs. 75/- per month.
b. Family settlement as to Co-ownership of the premises.
Plaintiff is stated to be minor at the time of the purchase of CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 36 of 50 the suit premises. It was mutually understood that Sh. Kale Chand will be a 50 % owner and the parties would own 25 % of the plot. On the basis of the said understanding plaintiff contributed money for the purchase of the suit property. The sale deed has been exhibited as Ex-PW-1/3. An oral understanding was reached between the parties that the plaintiff would abandon his claim in the suit property only if defendant makes a payment of Rs. 30,000/- within 6 months failing which plaintiff shall continue to be 50 % co- owner in the suit property. The said settlement was subsequently recorded in writing on 24.02.1979, the same has been exhibited as Ex. PW-1/6. Defendant failed to comply the terms of the said settlement. Subsequently, another family settlement was arrived between the parties, wherein, inter-alia, it was acknowledged that plaintiff had paid 50 % of the amount for purchase of the suit property and was the co-owner of the property. The said oral settlement was put into writing on 17.10.1979, same has been exhibited as Ex. PW-1/7. Along with the family settlement, a GPA and a Will both dated 17.10.1979 were also executed, the same has been exhibited as Ex. PW-1/8 and PW-1/9.
c. Payment of the property tax and other utility bills. In this regard plaintiff has relied upon the receipts and the bills.
d. Threat given by the defendant. Plaintiff has stated that the defendant had threatened to construct and cover the back portion of the suit property. Further, there was also threat to construct an illegal extension in the front courtyard and also tried to lock the back door of the suit property. He has relied CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 37 of 50 upon the complaint made to the concerned police station, which is Ex. PW-1/30 and Ex. PW-1/31.
Objection as to tendering of affidavit and documents:
9.4.4 At the outset, it would be pertinent to record that the defendant had taken objection qua certain documents on the ground that they were not part of the present suit, the said objection has already been adjudicated in favour of plaintiff (under the heading Legal objections). Further, objection regarding certain documents having been filed without the leave of court had also become infructuous, as the application of the plaintiff seeking leave to take these documents on record was allowed vide order dated 19.05.2023.
9.4.5 Ld. Counsel for the defendant had also objected to Ex.
PW-1/40 regarding the stage of production of the said certificate. There appears to be no merit in the objection taken on the ground of its filing at the stage of tendering of evidence. There is no gainsaying that a certificate under s. 65 B of the erstwhile Indian Evidence Act, can be filed at any stage of the trial. The law in this regard is fairly settled in the celebrated judgment of the Hon' ble Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1. In the present facts, the certificate having been filed at the stage of PE cannot be said to have been field at a belated stage. Further, the Defendant has failed to argue or satisfy as to how the said certificate is not in compliance of the requirements of law.
9.4.6 Ld. Counsel for the plaintiff has objected to certain questions asked by the Defendant's counsel. The nature of objection in all the said question is same and so is the question CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 38 of 50 asked by the counsel for the Defendant to the witness. The witness/ PW-1 was shown the paragraphs of the affidavit and was asked whether it is part of the plaint. The question accrues from the grievance of the defendant that the statements in the affidavit of PW-1 were beyond pleadings. The said objection has already been dealt with in the earlier part of the judgment and need not be reiterated. Furthermore, the questions being the nature of record could not have been allowed to be asked. (It would be apt to remind that the examination was done by Local Commissioner). The response of the witness would not have effected the adjudication of the factual and legal enquiry as to whether the statement in the affidavit falls beyond the pleadings or not.
Cross-examination on material aspects:
9.4.7 Now, let us lay bare the cross-examination done by the defendant on the said facts and evidence. In his cross-
examination dated 10.08.2023, plaintiff while deposing as PW-1, has stated that his father had expired in the year 1952. Plaintiff stated that he joined College in the year 1966 and resided in Hostel for first two years and subsequently commuted from his house/suit property. Witness has deposed that he was not required to pay the college fees as he was scholarship holder. Further, the hostel charges were paid from the scholarship amount. The amount of scholarship is stated to be Rs. 75/- per month for the first two years i.e. 1966 & 1967 and thereafter increased to Rs. 100/- per month for the next month. It is admitted that no document has been filed reflecting the scholarship amount. Witness has denied that he was not contributing towards the affairs of the family and voluntarily deposed that he was earning since 1966 and contributing towards the family since then. While deposing that his uncle Sh. Insha Ram CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 39 of 50 was residing and carrying business separately, it was admitted that partition in the family of grand father had already taken place, however it was volunteered that only his uncle got his share of house. It has been denied that defendant was sole earning member from 1966 and volunteered that defendant was dependent on family income. It is admitted that no sale deed has been placed qua sale of two shops. Witness has referred to Ex. PW-1/1 as the certificate issued by the buyer. It is stated that the construction of suit property commenced in the year 1968. It is deposed that he had contributed in the construction of suit property upto ground floor. Plaintiff has denied filing of any suit for specific performance of agreement dated 17.10.1979. It has been denied that property tax is being paid in the name of the defendant. It is voluntarily deposed that the property tax was being paid by the plaintiff since beginning and has been paid in his own name since 2004. The electricity connection was installed at first floor in the year 1987 and power of attorney was granted for the connection. It is stated that agricultural land was sold by the plaintiff in January 1967 and the consideration was received then itself, however the sale deed was registered when the plaintiff became major.
Appreciation of evidence:
9.4.8 At the heart of the plaintiff's case, is the agreement/family settlement dated 17.10.1979. The contents of the said document, which is Ex. PW-1/7, corroborates the version supplied by the plaintiff. The document, which is allegedly executed by both the parties, inter alia, envisages that the suit property was purchased jointly by the parties of the present suit and such they are co-owners of the property. (Ground floor under the ownership of the Defendant and the First floor under the CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 40 of 50 ownership of Plaintiff). The said document is accompanied by Will and GPA, stated to be in favour of Plaintiff qua the first floor of the suit property. Defendant admits to the signature on the said Ex. PW-1/7, albeit claiming it to be signed under Undue Influence and without free consent. However, defendant has not stepped into the witness box to prove this specific fact and has sought to disprove/object the document on the following grounds:
a. The document dated 17.10.1979 is an agreement and cannot be termed as a family settlement. The said agreement has not been properly stamped or registered and hence cannot be read into evidence. In this regard reliance has been placed upon Kale v. Dy. Director of Consolidation, (1976) 3 SCC 119 Tek Bahadur Bhujil vs Debt Singh Bhujil, AIR 1966 SC 292, Sahu Madho Das & Ors. Vs. Pandit Mukund Ram & Ors. AIR 1955 SC 481, Vijay Taneja vs Raj Kumar Taneja, 2017 SCC OnLine Del 6518 and Jagdish Kumar vs Subhash Chander, 2011 SCC OnLine Del 2275.
b. In addendum, the only remedy available with the plaintiff was to seek specific performance of the agreement, which has already become time barred.
The objections have been dealt henceforth.
9.4.9 It is the case of the defendant that the Ex. PW-1/7, is not recording a past understanding and the same requires registration. Further, it is contended that in the absence of antecedent title there can be no family settlement. The family settlement cannot envisage a future transaction, as alleged to be done in Ex. PW-1/7. Now, the adjudication of the question as to whether Ex. PW-1/7 is a family settlement, would involve legal CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 41 of 50 understanding of what constitutes family settlement. It would be profitable to refer to the decision of the Hon'ble Supreme Court in Kale v. Dy. Director of Consolidation, (1976) 3 SCC 119 at page 125 :
"9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made."
**
10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
"(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing.
Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 42 of 50 to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
9.4.10 In essence, a family settlement is an arrangement between the family members settling their dispute or rival claims as to title et al. The core objection of the defendant is that for Ex. PW-1/7 to be a family settlement, the existence of an antecedent title was sine qua non. It is his case that the plaintiff did not have any antecedent title. The argument of the defendant falls on two counts. Firstly, a bare perusal of the Ex. PW-1/7 reflects that it records that price of the suit property as well as the registration charges were borne equally by the parties, although the sale deed was registered in the name of defendant. Even if strictest of interpretation is attributed to the term "antecedent title", the factum of equal payment of consideration amount would certainly fall within the net of "claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement." Notwithstanding the sale deed being in the name of defendant, the recording of the term that part consideration had flown from separate fund of the plaintiff, would result into equitable claim in the proportion of his contribution. (See: S. 45 of the Transfer of Property, Act). Secondly, the argument of the defendant is also oblivious to the expanded interpretation given by the Hon'ble Court in Kale (supra), wherein the court in this regard observed:
"35...We have already pointed out that this Court has widened the concept of an antecedent title by holding that an antecedent title would be assumed in a person who may not have any title but who has been allotted a particular property by other party to the family arrangement by relinquishing his claim in favour of such a donee. In such a case the party in whose favour the CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 43 of 50 relinquishment is made would be assumed to have an antecedent title. In fact a similar argument was advanced before this Court in Tek Bahadur Bhujil case relying on certain observations made by Bose, J. in Sahu Madho Das case, but the argument was repelled and this Court observed as follows:
"Reliance is placed on the following in support of the contention that the brothers, having no right in the property purchased by the mother's money, could not have legally entered into a family arrangement. The observations are:
It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it to the portions allotted to them respectively.
*** These observations do not mean that some title must exist as a fact in the persons entering into a family arrangement. They simply mean that it is to be assumed that the parties to the arrangement had an antecedent title of some sort and that the agreement clinches and defines what that title is."
9.4.11 The upshot being that even if it is assumed that plaintiff had no antecedent title in the suit property, the same would be assumed by relinquishment of title by the defendant in favour of the plaintiff. The argument of the defendant that certain terms of the memorandum envisaged future transactions would also not come to his aide. The primary substance of the family arrangement is the ownership of the parties to the respective floors. The other aspects are merely ancillary and flow from the arrangement of ownership and hence would not change the nature of the document. They merely lay bear the contingencies accruing from the substantive right. It would be expedient to record that defendant had also argued that the Ex. PW-1/7 was referred in the pleadings as an "agreement" and subsequently the stance of the plaintiff had changed and the same was referred as "family settlement". The argument of the defendant mutilates the fundamental principle of evidentiary appreciation of a document CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 44 of 50 that nomenclature of the document is immaterial and rather the substance is to be examined. This being the case, the document Ex. PW-1/7 on the face of it can be safely said to be a family settlement/arrangement and not a contractual agreement. As a natural corollary there can be no question of invoking specific performance of a family arrangement. The judgments relied upon by the defendant essentially follow the principles laid down in Kale (supra) and have been taken into consideration, before reaching the above conclusion.
9.4.12 The aspect of requirement of registration has also been dealt by the judgment relied by defendant i.e. Kale (supra). It is admitted position of the plaintiff that the family settlement has been reduced into writing. The question as whether it was required to be registered would hinge on the factual inquiry as to whether the family arrangement has been brought about by the document Ex. PW-1/7 or if the said exhibit is a mere memorandum prepared after the family arrangement had already taken place. The terms of the family arrangement establishes that it falls in the latter category and hence there was no requirement of registration, the reasons have been discussed henceforth. The terms of the family arrangement records that the equal consideration towards the suit premises has already been paid by the parties, the construction of the first floor also has been completed by the sole contribution of the plaintiff and based on these two facts it goes on to record that "
it is apparent that the first party is the owner of the property in the ground floor and the second party is the owner of the property in the first floor." In effect, the arrangement has already taken place and the document merely records the same. The same is also corroborated by the evidence led by the parties, which shall be CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 45 of 50 adverted to later. The evidence proves that plaintiff was residing in the suit property since its inception and had also contributed to the sale consideration for the purchase of the property. Once it is shown that the memorandum merely records the terms which has already taken place, it would not be mandated to be registered and would not fall within the mischief of S. 17 of the Registration Act. By the same reasoning, the question of document being under- stamped shall not survive. As there can be requirement of paying stamp duty on such family settlement.
9.4.13 Now, let us deal with the evidence which corroborates the terms of the family settlement dated 17.10.1979. At the outset, it would be apt to record that the transaction which is sought to be proved or disproved took place more than 40 years prior to the date of deposition and almost 15 years prior to filing of the suit. Hence, the nature of evidence brought to prove or disprove has to be appreciated in that light. It would be an impracticable task to bring on record direct proof of contribution towards the sale consideration, which has been stated to be transferred almost four decade ago. Admittedly, the witnesses to the sale transaction and family settlement had already expired. The document Ex. PW-1/1, is a certificate of a transaction which took place in the year 1967. The document has been admittedly created in the year 1996 i.e after the filing of the present suit. It raises serious credibility on the document and raises question on the timing of its execution. Similar, while it's claimed that sale consideration qua document Ex. PW-1/2 was received prior to the registration, however the document itself records to the contrary and provides that the sale consideration of Rs. 2500/- was paid at the time of registration. However, it is the other surrounding circumstances which CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 46 of 50 corroborates the settlement dated 17.10.1979, including the payment of consideration. The subsequent conduct of the parties reflect that they have been residing in their respective floors as the owners of the property.
9.4.14 The assertion of the plaintiff that he was residing in the suit property since its construction and has been moving out for his job has been proved. PW-1/Plaintiff, in response to question no. 124, has stated that after joining college in 1966, he was commuting(after two years) from his newly built house/suit premises. No question leading to contradiction of this assertion has been brought forth by the defendant in the cross-examination. Further, the defendant did not choose to cross-examine on the genuineness or veracity of arrangement dated 24.02.1979 and in the absence of the same, the same having been exhibited and deposed by one of the executant ("who can vouchsafe its contents"), stands proved. The said document, Ex. PW-1/6 reflects that even on the date of arrangement both the parties were residing in the suit premises. Further, it is stated in the affidavit that during the period of 2004 to 2005, plaintiff was residing in a tenanted premises in Pitampura and from 2009 to 2012 were staying at Sri Aurobindo Marg, New Delhi and subsequently shifted to Malviya Nagar and Dwarka. At the same time, plaintiff has also filed utility bill of several years, including the years prior to his deposition viz. PW-1/23 and PW-1/28 (colly). Plaintiff has also filed proof of payment of property tax, albeit of the year after the filing of the present suit. The conduct and the surrounding circumstances does not fit the narrative of the defendant that the plaintiff was residing merely in a permissive possession. The fact that the defendant has abandoned his claim for possession of the first floor (by CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 47 of 50 withdrawal of CS no. 355/2012) also solidifies the fact that the plaintiff has been residing in the property in the capacity of owner.
9.4.15 These facts corroborates the settlement dated 17.10.1979, the document executed by the parties and its terms having been internalised even prior to its recording has been proved by the plaintiff. No explanation has come forth qua the execution of GPA and Will in favour of the plaintiff by the defendant. The Ld. Counsel for the defendant had made a belated argument at the conclusion of trial that the said documents have been cancelled/withdrawn, however no proof in this regard has been placed on record and hence the execution of these documents stood proved. These also compliment the family settlement dated 17.10.1979 and substantiates the version supplied by the plaintiff.
Conclusion 9.4.16 In conclusion, it can be safely said that the plaintiff has been able to prove the fact that he is the owner of the First floor of the suit property as per the settlement dated 17.10.1979 and is entitled to the relief of declaration to that extent.
9.4.17 This also establishes the subsisting right of the plaintiff for the purposes of injunction. The ownership right or the enjoyment of property qua the common portions will also flow from the settlement dated 17.10.1979. The threat qua the construction on the back portion has been substantiated with the complaint made to the concerned SHO, which is Ex. PW-1/30. No cross-examination has been done by the defendant to disprove the complaint and the alleged threat. Further, once it is proved that plaintiff is the co-owner of the suit premises, no construction can CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 48 of 50 take place on the common areas of the house without the consent of the other co-owner.
9.4.18 Accordingly, issue no. 1 and 5 are decided in favour of the plaintiff and against the defendant. The plaintiff is found to be entitled for the relief of injunction and declaration.
10. Before parting with the order, it would be pertinent to record that Ld. Counsel for the plaintiff during his closing argument had submitted that an illegal construction has been carried out by the defendant at the back portion in the year 2001. It was prayed that a demolition order be granted qua the same. It is contended that the said construction is in violation of the status quo order dated 14.07.1995. Be that as it may, neither the plaintiff had amended his relief incorporating the subsequent change and seeking the said relief nor has he pressed for his contempt application, which at the conclusion of the trial and with the life of interim order coming to an end would also be disposed off as not pressed. In addendum, in the absence of proof as to what was the status of the property, no orders can be passed assuming the breach of the status quo. Thus, there is no merit in the contention of the plaintiff for grant of the said relief.
11. Relief:
In light of the categorical findings as discussed above, plaintiff shall be entitled for the following relief:
a) A decree of declaration thereby declaring the plaintiff to be the owner of the suit property bearing no. C-16, First Floor, Bhagwan Dass Nagar, Rohtak Road, New Delhi-110026 in terms of agreement dated 17/10/1979.CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 49 of 50
b) A decree of permanent injunction thereby restraining the defendant / his representatives from raising / covering the back portion and interfering with the use and enjoyment of the front portion as well as back portion of the suit premises.
c) All interim application(s) stand dismissed as infructuous.
12. No order as to costs.
13. Decree sheet be prepared accordingly.
14. File be consigned to Record Room after due compliance. Digitally signed by KAUTUK KAUTUK BHARDWAJ Announced in open BHARDWAJ Date: 2024.08.08 16:16:14 +0530 court on 08.08.2024 (KAUTUK BHARDWAJ) CIVIL JUDGE-03/WEST THC/DELHI/08.08.2024 CS SCJ 1548/18 HARI OM GUPTA Vs. KRISHAN GARG Page 50 of 50