Delhi District Court
Shri Satpal Singh vs Sh. Jit Singh on 26 May, 2016
IN THE COURT OF SH. SHAILENDER MALIK, ADJ16 (CENTRAL),
TIS HAZARI COURT, DELHI
SUIT NO. : 35/16
UNIQUE ID NO.:
In the matter of :
1. Shri Satpal Singh
2. Sh. Raj Kapoor
3. Sh. Manish
All Sons of late Sh. Man Singh
All R/o Village Boodhpur, Bijapur,
P.O. Alipur, Delhi110036. ......PLAINTIFFS
Versus
1. Sh. Jit Singh
2. Sh. Krishan Kumar
Both sons of late Man Singh
All R/o Village Boodhpur, Bijapur,
P.O. Alipur, Delhi110036
3. Sh. Dinesh Dahiya
4. Sh. Rajeev Dahiya
Both sons of Sh. Jit Singh
All R/o Village Boodhpur, Bijapur,
P.O. Alipur, Delhi110036
Suit no. 35/16 Page 1/23
5. Ritesh Kumar
6. Sh. Manoj Dahiya
Both sons of Sh. Krishan Kumar
All R/o Village Boodhpur, Bijapur,
P.O. Alipur, Delhi110036
7. Sh. Ramesh Kumar
S/o Sh. Balbir Singh
R/o Village Alipur
Delhi110036
8. Sh. Suresh
S/o Sh. Hardwari Lal
R/o Village Akbarpur Mazra,
Delhi1110036
9. Sh. Sunil Chauhan
S/o Sh. Man Singh Chauhan
R/o Village Bakoli, Delhi110036
10. Sh. Ran Singh (Proforma Party)
S/o Late Sh. Man Singh
R/o Village Boodhpur, Bijapur,
P.O. Alipur, Delhi110036 .....DEFENDANTS
Date of institution of suit : 27.07.2007
Date when reserved for orders : 12.05.2016
Date of decision : 26.05.2016
JUDGEMENT
This is suit for declaration and mandatory injunction.
2. Facts as averred in the plaint are that the plaintiffs no.1 to 3, Suit no. 35/16 Page 2/23 Defendant no.1, 2 & 10 are real brothers. Defendant no.3 to 6 are nephews of plaintiffs and defendants no.7 to 9 are other persons who stated to have purchased the portions of disputed land from the defendant no.3 to 6. It is alleged that the defendant no.1 and 2 have prepared forged GPA, agreement to sell and affidavit all dated 17.01.1997 purported to have been executed by the plaintiffs and the defendant no.10 in their favour, in respect of the plot no. 93, measuring 1 bigha 11 biswa as well as plot no. 92 measuring 1 bigha 2 biswa situated in the extended laldora area of Village Boodhpur, Bijapur, having revenue record as Khasra No. 92 and 93, (hereinafter referred to as the suit property). It is alleged that the plaintiffs and defendant no.10 never executed above mentioned documents in favour of the defendant no.1 and 2. Defendant no.1 and 2 have further got executed a sale deed in favour of their sons (defendant no.3 to 6) on the basis of such forged GPA, and other documents dated 17.01.1997. Plaintiff and defendant no.10 never executed those documents in favour of the defendant no.1 an 2 in respect of their shares in Khasra/plots in question.
3. It is stated that sale deed got executed by defendant no.1 and 2 in favour of the defendants no.3 to 6 is null and void. Defendants no.1 and 2 had no right to sell the share of the plaintiffs and of defendant no.10 as plaintiffs, defendants no.1, 2 & 10 were having equal sharing in the disputed plot/khasra. Defendants no.1 and 2 by preparing forged documents got the shares of plaintiffs and defendant no.10, sold to the defendants no. 3 to 6. It is stated that the plaintiffs and the defendant no.10 came to know about those documents only on 13.07.2007 when they took copy of the khatoni from Halka Patwari and copy of the Khata Khatoni no. 615/4/85 bearing Khasra no. 92, 93 and 216 in which entries of mutation were shown Suit no. 35/16 Page 3/23 in the name of defendant no. 3 to 9 as it is mentioned that defendant no.1 and 2 on the basis of documents (claimed to be forged) have got sale deed dated 04.05.2005 executed in favour of their sons (defendant no.3 to 6) and got the mutation done vide mutation no. 110/ACO/200506 order dated 05.08.2005. Thereafter, defendants no.3 to 6 sold the portion of disputed land to defendant no. 7 and 8. Further, defendant no. 7 and 8 sold the land to defendant no. 9 vide Khatoni bearing no. 615/485 dated 13.07.2007. It is stated that since defendant no. 1 and 2 have played fraud with plaintiffs and the defendant no.10 by getting forged documents prepared and also by getting sale deed executed in favour of the defendant no. 3 to 6 on the basis of such forged documents, present suit was filed seeking decree of declaration against the defendants and thereby declaring GPA, agreement to sell, affidavit dated 17.01.1997 to be forged document. It is further prayed by the plaintiff that sale deed dated 04.05.2005 executed by defendant no. 1 and 2 in favour of the defendant no.3 to 6 on the basis of such forged documents be also declared null and void. Further, sale of suit land by defendants no. 3 to 6 to defendant no. 7 and 8 and defendants no. 8 & 9 in favour of the defendant no. 9 be also declared to be illegal transaction. Plaintiffs have further prayed that by decree of mandatory injunction, direction be given that shares of the plaintiffs and of defendants no.10 be mutated in the revenue record/khata.
4. Defendants no. 1 to 6 and 9 have filed joint written statement taking various objections inter alia pleadings that plaintiff no. 1,2,3, Defendants no.1 & 2, 10 are real brothers. During the course of consolidation proceedings in their village, above mentioned brothers got one plot each i.e. total six plots bearing no. 86, 87, 88, 89, 92 and 93 in the extended laldora of Suit no. 35/16 Page 4/23 Village Boodhpur, Bijapur, Alipur, Delhi. Those plots were allotted jointly in the name of all six brothers. It is pleaded that after the allotment of those plots, plaintiff no.1, 2, 3 and defendant no. 10 were interested in selling their share bearing no. 86, 87, 88 & 89. But it could not be sold without the consent of defendant no.1 and 2 on the sale documents of such plots. Therefore, plaintiff no.1, 2, 3 and defendant no.10 had appointed defendant no.1 and 2 as their attorney by way of GPA dated 17.01.1997 to sell plot no. 92 and 93 in favour of anybody as they like for their share. Those plots were accordingly sold by defendant no.1 and 2 in favour of the defendant no. 3 to
6.
5. It is pleaded that the defendant no. 1 wanted to transfer his plot in the name of his sons i.e. defendants no. 3 an 4 and defendant no.2 also wanted to transfer his plot in the name of his sons since it was a joint property. The plaintiff no. 1, 2 & 3 and defendant no. 10, agreed to transfer and they signed on the transfer papers for plots no. 92 and 93 in favour of defendant no. 1 and 2, who accordingly executed the sale deed in favour of defendant no. 3 to 6. On the basis of such documents, mutation was also sanctioned in the name of defendant no. 3 to 6. It is pleaded that all these transactions was done with the consent of all the six brothers without any coercion and pressure. Documents of sale were prepared by the signatures of all the six brothers and defendant no.10 had due consent and knowledge of these facts. As such no fraud was played by defendant no.1 and 2. It is also denied that forged signatures were obtained from plaintiff no.1 to 3 and defendant no.10.
6. It is further pleaded that when the process of mutation in favour of Suit no. 35/16 Page 5/23 the defendants no. 3 to 6 was initiated on filing the petition before the tehsildar, Narela, statement of all the joint owners regarding sale of plot by defendant no.1 and 2 in favour of defendant no. 3 to 6 was recorded after issuance of notice to all the joint owners. Notice was issued to the plaintiffs on 025.05.2005 for filing any objections, if any. It is a matter of record that the plaintiff no. 1 to 3 and the defendant no. 10 did not file any objection regarding mutation in the name of defendant no. 3 to 6, it clearly shows that no fraud was committed.
7. Defendants have also taken the objection that this court has no jurisdiction to entertain the suit in view of the provisions of Delhi Land Reforms Act, it is further pleaded that suit is barred by limitation. Suit is based on false facts, suit being bad for nonjoinder/misjoinder of parties, suit being devoid of cause of action. Case of plaintiff is denied in totality on merits.
8. Defendants no. 7 and 8 have also filed their written statement taking the objections that the suit has not been properly valued for the purpose of court fees and jurisdiction. It is pleaded that the plaintiff is substantially seeking the cancellation of GPA , agreement to sell dated 19.01.1997 and further seeking the cancellation of sale deed dated 04.05.2005 and also seeking cancellation of sale deed in favour of the defendant no. 7 and 8 as well as defendant no. 9. Plaintiffs have also valued the suit on the basis of sale deed amount i.e. Rs. 4.50 lacs. However, Plaintiffs have furnished the deficient court fees as plaintiffs were required to value the suit as per 4relief sought on advelorem basis. Defendant no. 7 and 8 have also taken the objection that suit is barred by limitation as plaintiffs are challenging the Suit no. 35/16 Page 6/23 documents dated 17.01.1997 which was very much within their knowledge but they have filed the suit after the expiry of limitation period. It is further pleaded that the plaintiffs in their suit have not given specific description of documents executed by defendant no. 3 to 6 in favour of the defendant no. 7 and 8 and further execution of documents executed by defendant no. 7 and 8 in favour of the defendant no. 9, in the absence of better particulars, suit is not maintainable. It is further pleaded that plaintiffs being not in possession of the suit property and plaintiff not seeking the relief of possession, therefore, simpliciter suit for declaration is not maintainable in view of Section 34 of the Specific Relief Act. While denying the case of the plaintiffs, it is pleaded that the plaintiffs, defendant no.1, 2 and 10 are coowners of agriculture land and residential plot in khata no. 485, Khasra no. 7/17/1/1, 18, 19, 20/2, 20/3, 13/15/2, 14/11, 86, 87, 88, 89, 92, 93 and 216 of Village Boodhpur, they were cobhumidhars of above said lands. There was a settlement amongst the brothers i.e. plaintiffs, defendants no.1,2 & 10 that plaintiffs would sell plot of land and their share and therefore, they gave GPA in favour of the defendant no.1 and 2 for sale of particular plots. This settlement necessitated as on the spot all plot were partitioned and all the brothers have been residing separately. Defendants no.1 and 2 sold the plot to defendant no. 3 to 6 for themselves as well as as attorney of plaintiffs and defendant no.10. This attorney was duly executed by the plaintiffs and defendant no.10 with the purpose to facilitate the transfer of plot in the share of defendant no.1 and 2. Since the plaintiffs are not in good terms with the defendant no. 1 and 2, therefore, in order to settle the old score, they have filed the false present suit. It is pleaded that plaintiffs and defendant no.10 had knowledge of execution of documents and mutation.
Suit no. 35/16 Page 7/239. Defendant no.10 had also filed the written statement taking the objection therein that the suit is bad for nonjoinder and necessary parties. Defendant no. 10 has admitted the case of the plaintiffs and has pleaded in the written statement that the defendant no.10 never executed documents like GPA, agreement to sell etc. in favour of the defendant no. 1 and 2.
10. Plaintiffs filed replication to the respective written statement of the defendants wherein the case of the plaintiffs were reiterated and pleadings of the defendants in the written statements were controverted.
11. On the basis of pleadings as come on record, following issues were framed by ld. Predecessor of this court on 21.05.2008 :
1) Whether the suit filed by the plaintiffs against the defendants is barred by limitation? OPD
2) Whether the civil court has no jurisdiction to entertain and decide the present suit? OPD
3) Whether the Plaintiff is entitled to the relief of declaration as claimed? OPP
4) Whether the plaintiff is entitled to the relief of mandatory injunction as claimed? OPP
5) Relief 12 In order to substantiate their case, plaintiffs have examined as many as five witnesses. PW1 is plaintiff no. 1, Satpal Singh, PW2 is plaintiff no.2 Raj Kapoor and PW3 is also plaintiff no. 3 Manish all sons of Maan Singh.
Suit no. 35/16 Page 8/23PW4 Ran Singh and PW5 is Handwriting Expert M.S. Mishra. On the other hand, on behalf of defendants, 10 witnesses were examined. DW1 is defendant no. 1 namely Jeet Sigh, DW2 is also defendant no. 2 Kishan Kumar, DW3 is Dinesh Dhaiya, DW4 is Rajiv Dhaiya, DW5 is Ritesh Kumar and DW6 is Majoj Dhaiya, DW7 is Jitender Singh, DW8 is Sunil Chauhan, DW9 is Lalit Rana (Halka Patwari) & DW10 Suresh Chand Meena, LDC from SubRegistrar, Ali Pur, Narela.
13 I have heard ld. Counsels for the parties and has gone through the record carefully. My findings on each of the above mentioned issue are following: 14 ISSUE NO. 1 (Whether the suit filed by the plaintiffs against the defendants is barred by limitation?) First of all, before I discuss the facts and the legal points involved, it be noted that it is a suit for declaration whereby plaintiffs have sought declaration that affidavit dated 17.01.1997 issued in favour of defendant no. 1 & 2 purported to have been executed by plaintiff no. 1 to 3 and defendant no. 10 be declared a forged documents and as a consequence thereof sale deed dated 04.05.05 executed by defendant no. 1 & 2 in favour of defendant no. 3 to 6 be declared null and void and similarly, sale deed by defendant no. 3 to 6 in favour of defendant no. 7 & 8 and defendant no. 7 & 8 in favour of defendant no. 9 be also declared to be an illegal transaction. Apparently, plaintiffs are seeking the relief of declaration primarily in respect of GPA dated 17.01.1997 and present suit for relief of declaration was filed on 26.07.2007. It is however, mentioned in para6 and 8 of the plaint that Suit no. 35/16 Page 9/23 plaintiffs and defendant no. 10 came to know about these documents only on 13.07.2007 when they took the copy of Khatoni from the Halka Patwari as well as copy of Khata Khatoni No. 615/485 in respect of Khasra No. 92 & 93 wherein entries of Mutation in favour of defendant no. 3 to 9 were made then plaintiffs stated to have come to know about the GPA dated 17.01.1997. On the other hand, defendant no. 1 to 6 and 9 as well defendant no. 7 & 8 have taken the objection in their written statement that the suit is barred by limitation because present suit having been filed after about 10 years of alleged dated of execution of GPA dated 17.01.1997 and in between this period Mutation was also sanctioned on filing of Mutation Petition before Tehsildar wherein statement of all the joint owners were recorded and notice were duly issued to plaintiffs as well as defendant no. 10, but they failed to file any objection regarding that Mutation in favour of defendant no. 3 to 6 as such plaintiffs were well aware about the documents including GPA dated 17.01.1997, Sale Deed dated 04.05.2005 and subsequent Sale Deed in favour of defendant no. 7 & 8 as well as in favour of defendant no. 9.
15 As per the provisions of Article 56 for seeking the relief of declaration of forgery of an instrument issued or registered, prescribed period is three years which starts from the day when the issue of registration become known to the plaintiff. Thus, the period of three years are reckoned from the date of knowledge. In the present case, plaintiffs have specifically mentioned in the plaint that they came to know about alleged documents only on 13.05.2007 when plaintiffs came to know about the forgery from order of Mutation obtained on 13.07.2007 on the basis of alleged documents. Although, to counter this plea, defendants have pleaded in their written statement that plaintiffs were aware about these documents, more Suit no. 35/16 Page 10/23 specifically when Mutation proceedings were going in which plaintiffs were served with the notice of the Tehsildar. In this regard, if we examine the evidence as stated above, plaintiff no. 1 to 3 have also appeared in the same series of PW1, PW2 and PW3. If we examine their evidence, on the question of limitation and also on the question whether plaintiffs were aware about mutation proceedings, all these three witnesses PW1 to 3, have denied that they have received any summons / notice from Tehsildar office regarding mutation. Therefore, PW1 to 3 has also testified that question of filing of objection does not arise, thus in such situation onus shifts upon defendants to establish that plaintiffs had due knowledge / notice of pendency of proceedings of Mutation before Tehsildar. Even in crossexamination of PW1 to PW3, no document was put to them, nor anything came to show that plaintiff had knowledge of those proceedings. Now, if we examine the evidence of defendants, DW1 to DW6 have testified in their examination in chief that plaintiffs and defendant no.10 had knowledge of proceedings of Mutation pending before Tehsildar. However, they have not proved any document to establish that any notice / summons was duly served upon plaintiff no. 1 to 3 or to defendant no. 10. In this regard, rather DW1, Jeet Singh, DW2 Kishan Kumar as well as DW3 Dinesh Dhaiya have admitted in their cross examination that they do not know about contents of their examination in chief. Apparently, their affidavit of examination in chief being reproduction of facts pleaded in the written statement were not prepared on their instructions. These witnesses have specifically admitted that they do not know anything about the contents of their affidavit written in English. Witnesses have stated that they do not know English language and contents of their affidavit were never explained to them in Hindi.
Suit no. 35/16 Page 11/2316 Even otherwise, from the evidence of DW1 to 6, nothing could come out to show that plaintiffs were duly served with the notice, during the Mutation proceedings. In this regard, it is appropriate to refer to again the evidence of PW1 Satpal Singh who in para5 of affidavit of examination in chief has testified that mutation were got sanctioned without his notice and the mutation order is Ex.PW1/1. If we go through the said mutation order, it shows that Revenue Official on the basis of Registered Sale Deed in favour of defendant no. 3 to 6 carried out the mutation. There is no reference in the order to show that notice were duly served to plaintiff no. 1 to 3 and defendant no 10 nor there is any document placed on record to show any service of notice upon plaintiff no. 1 to 3. In the absence of same, I find that plaintiffs have proved that they came to know about the documents in question only on 13.05.2007 when mutation was carried and on 13.07.2007 when they obtained the copy of mutation order and Khata Khatoni, in that sense suit being filed within three years from the date of knowledge about the documents is therefore, within limitation. Issue no. 1 is accordingly decided in favour of plaintiffs and in favour of defendants.
17 ISSUE NO. 2(Whether the civil court has no jurisdiction to entertain and decide the present suit?) This issue has been framed on the objection taken on behalf of defendant no. 1 to 6 and 9 to the effect that Civil Court has no jurisdiction over the subject matter of the suit as matter is governed by the provisions of Delhi Land Reforms (DLR) Act and therefore, it is pleaded that because of Bar of Section 185 of DLR Act, this suit is not maintainable in civil court. It appears that since the present suit is in respect of plot No. 92 and 93 of Suit no. 35/16 Page 12/23 Village Budhpur, Bijapur, these plots along with four other plots were admittedly given to plaintiffs no. 1, 2 & 3 , and defendant no. 1, 2 and 10 being brothers in joint holding after consolidation proceedings, therefore, such objection is taken that in respect of such land only Revenue officials/ officers have jurisdiction to decide all the controversy. It be noted that those plots are situated in extended Laldora abadi of Village Budhpur, Bijapur and is not an agriculture land. Even, otherwise, plaintiff is seeking the relief of declaration regarding certain documents to be declared as null and void on the ground that alleged GPA dt 17.01.97 was never executed by plaintiffs no. 1 , 2 & 3 in favour of defendant no. 1 and 2, considering such reliefs as prayed for, I do not find that such relief is within the jurisdiction of Revenue Officials or that Bar of Section 185 of DLR Act is attracted. Provisions of Sec. 185 DLR Act bars the jurisdiction of civil courts in respect of those matters , which have been specifically provided under the Act to be within the jurisdiction of Revenue Officials. Issue regarding declaration as to whether a document like GPA in the present case is forged or not is within the domain of civil court in terms of Sec. 9 of CPC. Therefore, I hold that there is no bar for this court / civil court to entertain the present suit accordingly, Issue stands decided against the defendants and in favour of plaintiffs.
18 ISSUE NO. 3(Whether the Plaintiff is entitled to the relief of declaration as claimed?) Onus to prove this issue was on plaintiffs. In the facts and circumstances of the case as discussed above, the question for consideration is whether plaintiffs along with defendant no. 10 had executed and signed Suit no. 35/16 Page 13/23 the GPA dt 17.01.97 in favour of defendant no. 1 & 2 or not. If upon examining the evidence as come on record, it is found that GPA dt 17.01.97 was never signed by plaintiffs , subsequent sale deed dt 04.05.05 executed by defendant no. 1 & 2 in favour of defendant no. 3 to 6 would obviously be also required to be declared of having no legal sanctity. Thus, let us examine the evidence as come on the record.
19 Plaintiffs have examined five witnesses, PW1 is plaintiff no. 1 Satpal Singh who in his affidavit of examination in chief has testified that defendant no. 1 & 2 have forged the documents like GPA , agreement to sell , affidavit all dt 17.01.97 and have sold their share and of defendant no. 10 in favour of their son (defendant no. 3 to 6). PW1 testifies that GPA dt 17.01.97 MarkA does not bear his signatures at point A and his signatures have been forged by someone. And similarly other documents like agreement to sell and affidavit dt 17.01.97 also do not bear his signatures at point A and B as those signatures have also been forged. PW1 further says that he made the complaint in this regard in PS Ali Pur vide DD No. 20A dt 18.07.07. PW1 says that defendant no. 1 & 2 have got executed and registered a Sale Deed in favour of their sons , on the basis of forged GPA. Said Sale Deed is dt 04.05.05 and is MarkD. PW1 says that on the basis of said sale deed and forged GPA , mutation was got done in the name of defendant no. 3 to 6, on 05.08.05, vide M110 / ACO dt 20.05.06 and Mutation is Ex.PW1/1. Khatoni bearing No. 485/188 Min. is Ex.PW1/2. PW 1 says that on the basis of such sale deed dt 05.08.05 and mutation in their favour , defendant no. 3 to 6 have sold the two plots in favour of defendant no. 7 & 8 and further defendant no. 7 & 8 sold those plots to defendant no. 9 illegally. PW1 says that defendant no. 3 to 6 had got no legal right to sell Suit no. 35/16 Page 14/23 those disputed plots / land bearing no. 92, measuring 1 bigha 2 biswa & 93 , measuring 1 bigha 11 biswa of village Budhpur, Bijapur.
20 PW1 has been duly crossexamined in which witness has admitted that they are six brothers and six plots were jointly alloted to them to those six brothers during the course of consolidation proceedings. However, PW1 says that four other plots (86,87,88 & 89) were sold by all six brothers, PW1 says that he do not remember the parties to whom those plots were sold and also do not remember the date and year of sale of those four plots. Witness also admitted that above said six plots were joint in the name of all the six brothers.
21 PW1 was further cross examined, his other relevant portion of cross examination will be discussed at later stage of the judgment. PW2 is Raj Kapoor, this witness has also testified similar facts in his examination in chief as deposed by PW1. This witness / PW2 also admits that they are six brothers and they were joint owners of six plots allotted to them during the course of consolidation proceedings in their village. This witness also admits that out of six plots, four plots were sold by all the six brothers. This witness also denies the suggestion given on behalf of the defendant to the effect that he along with his other plaintiff brothers and defendant no. 10 had actually signed documents dt 17.01.97. This witness also admits that he came to know about the documents dt 17.01.97 after seeing the Mutation order. PW 2 also admits that he never received any summon from Tehsildar Court.
22 PW3 is Manish whose evidence is also on the same facts as of PW1 & 2.
Suit no. 35/16 Page 15/2323 PW4 is Ran Singh s/o late Man Singh, who is otherwise performa Defendant no. 10. PW4 like his three brothers (PW1, 2 &
3) has also deposed that defendant no. 1 & 2 have cheated him and plaintiffs by forging their signatures on GPA, agreement to sell, affidavit dt 17.01.97. The copy of which are markA, B and B1. PW4 also testifies that those documents do not bear his signatures as he never signed those documents. This witness also testifies that original of these documents are neither in the possession of plaintiffs nor in his possession. PW4 further says that defendant no. 1 & 2 got mutation done in favour of their son being defendant no. 3 to 6 vide mutation order Ex.PW1/1, fraudulently whereas, he and plaintiffs never sold their share in two plots in question. This witness was also duly crossexamined.
24 PW5 is Sh. M.S. Mishra, Handwriting Expert, who has simply testified that he has given handwriting report Ex.PW4/A in respect of disputed documents.
25 It is argued by the counsel for the plaintiff that from the consistent and truthful testimonies of PW1 to 4 , it is established that GPA and other documents dt 17.01.97 was never signed by plaintiffs and defendant no. 10 and their signatures were forged. It is submitted that their testimonies has also corroborated by the report of Handwriting expert PW5.
26 On the other hand, it is submitted by the counsel for the defendant no. 1 to 6 that their evidence is not worth relying upon, Suit no. 35/16 Page 16/23 plaintiffs have not placed on record the original of documents dt 17.01.97, and therefore, a report of handwriting expert on the copy of document is of no legal relevance. It is also argued by counsel for defendant no. 9 that plaintiffs have failed to establish their case, their testimony is contradictory as all the witnesses have admitted in their crossexamination that out of six plots jointly allotted to those six brothers, four have been sold. As such there has never been any occasion for defendant no. 1 and 2 to forge the signatures of plaintiffs, it is argued that plaintiff have failed to establish that their signatures were forged as such the case of plaintiffs is liable to be dismissed.
27 Having appreciated the evidence led on behalf of the plaintiffs, it be noted first of all that there is no dispute with regard to the fact that six brothers (plaintiff no. 1 to 3, defendant no. 1 & 2 and 10 ) were alloted six plots jointly. It is also undisputed fact that those plots could have been sold jointly by all the brothers. Now, plaintiff has alleged that in respect of two plots no. 92 & 93, defendant no. 1 & 2 has got prepared documents including GPA, agreement to sell and affidavit all dated 17.01.97 showing that plaintiff no. 1 to 3 and defendant no. 10 has sold their interest in those plots to defendant no. 1 & 2. It is also required to be noted here, that plaintiff has not placed on record the original of documents like GPA, agreement to sell and affidavit all dated 17.01.97. In the evidence of PW1 to 3 and PW4 these documents are marked as Mark A, B & B1. Though it is argued on behalf of the plaintiff that original of these documents are in the possession of defendant and therefore plaintiff could not produce the original, however, this fact is neither pleaded in the plaint nor any application has been moved Suit no. 35/16 Page 17/23 during the course of trial in terms of order 12R. 8 CPC seeking the original of those documents from defendant. There is no explanation as to why such application was not moved , if according to plaintiffs the original of these documents were in possession of defendant. This aspect of the suit is very important because plaintiff is seeking the relief of declaration of certain documents the original of which has never been placed on record nor any reasons have been given on record for nor producing the original.
28 Now, noting the above mentioned defect in the case of plaintiff, if we appreciate the evidence of PW1 to 5 , first of all, it be noted that PW1 in cross examination admits that 6 plots were allotted to all 6 brothers during the course of consolidation proceedings. PW1 further says that they all 6 brothers have sold other 4 plots , however, no details have been given either in the pleadings or by documents as to on which date and by which documents other fourt plots were jointly sold by all the brothers. On this issue, evidence of PW1 remained very vague. Regarding the documents all dt 17.01.97, PW1 say that he had stated in the plaint that original are with defendant no. 1 & 2 , however, there is no such pleadings in the plaint. Witness further admits that he had not filed any application u/o 12 R. 8 CPC. PW1 in his crossexamination recorded on 11.11.09 on one hand states that his signatures were forged on the documents in question, on the other hand, he has stated that he do not know whether he has signed the document dt 17.01.97. Regarding copy of documents dt 17.01.97, PW1 says he took the copy of those documents from Revenue Courts but at the same time witness says that he do not remember the date when those documents were taken.
Suit no. 35/16 Page 18/2329 PW2 Raj Kapoor also admits in his crossexamination that 6 plots were jointly allotted, this witness also says that 4 plots out of those 6 were sold by all 6 brothers. However, he has failed to give other detail of selling of those 4 plots. PW2 further says that he do not remember whether payment of sale consideration was received in cash or cheque. This witness has also failed to give any explanation as to how and when he had obtained the copy of the documents in question and why the notice u/o 12 R. 8 CPC was not given. Similar is the evidence of PW3 and 4.
30 it is clear from the reading of evidence of PW1 to 4 that their testimony on the face of it cannot be relied upon firstly because they are deposing only in respect of a copy of document by alleging that their signatures on copy of documents are forged, however, without giving any justifiable explanation as to where the original of those documents have gone. It is to be noted here that initial onus is always on the plaintiff to establish their case. If according to them their signatures on a documents were allegedly forged , this fact is also required to be proved by plaintiffs at least by preponderance of probabilities by certain legally admissible documents and evidence. Section 61 of Evidence Act provides that a document can be proved either by primary or secondary evidence of such document. But in their case plaintiff have neither given primary evidence nor made out any case for leading secondary evidence of documents in question.
31 As stated above, there is no explanation as to why notice was not given to defendant no. 1 and 2 for calling them upon to place on record original and thereafter, to lead secondary evidence of those documents in Suit no. 35/16 Page 19/23 terms of sec. 65 of Evidence Act. Unfortunately, such procedure was never adopted in the present case, and therefore, the document regarding which relief has been sought has never been lawfully proved and are admittedly marked as Mark A, B and B1. It simply means that these documents cannot be looked into.
32 Now, if we examine PW5 , the handwriting expert Sh. M.S.Mishra, this witness upon appearing in witness box has simply deposed that he has filed his handwriting report Ex.PW4/A which consists of 17 pages including photographs. Before I discuss the crossexamination of PW5 first of all it be noted that this witness has given his opinion only on the basis of photocopies of documents. Law with regard to appreciating the evidence of handwriting expert is very clear that opinion of an expert is only a corroborative type of evidence, only on the basis of expert opnion no conclusion can be drawn if there is no other supportive evidence. Moreover, handwriting expert's opinion is even a fragile evidence as opinion of handwriting is only on the basis of practice and experience, such opinion of handwriting is not a scientific opinion therefore, evidence of handwriting expert is to be accepted with good amount of circumspection.
33 More particularly opinion of handwriting expert only on the basis of photocopies of documents cannot be relied upon given the inherent weakness attached with such opinion of an expert. In the present case also, PW5 has also given the opinion only on the basis of photocopies, therefore, his evidence is liable to be rejected on this point itself.
34 Another important aspect to be noted is that this expert / PW5, has Suit no. 35/16 Page 20/23 given the opinion on the documents but it is not clear as to when those documents were provided to him for his inspection and opinion because during the whole trial no application was moved before the court for permitting the expert / PW5 to examine those documents for giving his opinion. No doubt, evidence of privately engaged handwriting expert can still be taken into consideration, however, at least it is required that such expert must have taken permission in the court for examining those documents and then to file his report. But in this case, even this procedure has also not been adopted. It is not clear from the evidence of PW5 as to how and when he obtained those documents for his examination and opinion, previous order sheets of the suit shows that at no point of time any application is moved for permitting the expert to examine those documents. Thus, on this aspect also, the evidence of PW5 is unworthy of any credence.
35 PW5 has also simply stated that he has given the report. PW5 in his examination in chief has nowhere deposed any fact which make him an expert, if we go through the provisions of Sec. 45 of Indian Evidence Act, it provides that a person to be an expert on which court has to form opinion, on the point of foreign law, science or Art such person must be having a special skill, knowledge, experience or expertise in that field. In other words, a person to be an expert may not be having education qualification but there must be evidence to show that he has skills , expertise, or experience for considering him to be an expert. In the present case, there is no evidence in the examination in chief of PW5 as to on which basis he can be described as "Handwriting Expert" when he has not stated anything in this regard in his examination in chief. Although in crossexamination PW5 has testified that he has been giving handwriting expert opinion since 1996, but witness Suit no. 35/16 Page 21/23 admits that he is not having any licence nor any certificate. PW5 states that he inspected the file with the approval of the court at the time of taking photographs, however, such evidence of PW5 is against the record as no approval was taken from the court. PW5 admits that there is no original documents at the time when he took photographs. Thus, I find from above discussion of evidence, that evidence of PW5 is also of no logic and does not provide any basis for coming to the conclusion regarding the documents in question.
36 Though, defendant no. 1 to 6, all have appeared in witness box, however, without discussing their evidence, if we, discuss the evidence of DW7 Jitender Singh who has been witness to the execution of GPA dated 17.01.97, DW7 testifies that he signed the GPA dt 17.0197 which is marked as DW7/1 he says that he signed in the presence of four brothers namely Ran Singh, Satpal, Raj Kapoor and Manish who signed at points A, B, C and D. Thus, this witness has been witness of document in question i.e. GPA dt 17.01.97, however, nothing could come out in the cross examination of DW7 to disbelieve his evidence, this witness has not even been suggested that plaintiffs and defendant no. 10 has not signed the GPA dated 17.01.97. Without going into details of evidence of other defendants, since the onus was on the plaintiff to establish their case I find that plaintiffs have failed to establish their case for the reasons as discussed above. Consequently, this issue stands decided against the plaintiff and in favour of the defendant.
37 ISSUE NO.4(Whether the plaintiff is entitled to the relief of mandatory injunction as claimed?) Suit no. 35/16 Page 22/23 Onus to prove this issue was also on the plaintiff. This court while deciding issue No. 3 has already concluded that plaintiff could not establish his case for relief of declaration, once it has already been held that plaintiff is not entitled for the relief of declaration to declare agreement dt 17.01.97 to be null and void, as an answer consequence I do not find a case is made out for a relief of mandatory injunction, consequently, this issue also stands decided against the plaintiff.
RELIEF In view of my findings on Issue No. 3 and 4, the suit stands dismissed. Decree sheet of dismissal be prepared accordingly. File be consigned to record room after due compliance.
(SHAILENDER MALIK)
ANNOUNCED IN THE ADJ16 (CENTRAL)
OPEN COURT: TIS HAZARI COURTS
26th MAY 2016 DELHI
Suit no. 35/16 Page 23/23