Delhi District Court
Shri Dinesh Kumar Sharma vs (A) Smt. Usha Rani on 11 September, 2018
IN THE COURT OF SHRI VISHAL SINGH
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI.
New CS No. 10162/16
IN THE MATTER OF:
1. Shri Dinesh Kumar Sharma
S/o. Late Shri Harbans Lal Sharma
R/o. 4A/32, Tilak Nagar,
New Delhi.
2. Shri Rajesh Kumar Sharma
S/o. Late Shri Harbans Lal Sharma
R/o. 4A/32, Tilak Nagar,
New Delhi.
3. Shri Mukesh Kumar Sharma
S/o. Late Shri Harbans Lal Sharma
R/o. 4A/32, Tilak Nagar,
New Delhi. ....PLAINTIFFS
VERSUS
1.(a) Smt. Usha Rani
W/o. Sh. Subhash Dhingra
R/o. D12/6, Model Town,
New Delhi.
1.(b) Ankit Manocha
S/o. Sh. Inderjit Manocha
R/o. Flat No.6, Plot No. 5A,
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 1/26
Second Floor, Bhama Shah Marg,
New Delhi.
1. Shri Sanjeev Kumar
S/o. Shri Kashmere Lal
R/o. 10/22, Subhash Nagar,
New Delhi.
2. Shri Rakesh Kumar
S/o. Late Shri Ram Luthra
R/o. 15/62, Subhash Nagar,
New Delhi.
3. Shri Sharwan Kumar Arora
S/o. Shri Soni Ram
R/o. 14/109, Subhash Nagar,
New Delhi - 110 027.
4. Shri Mahesh Kumar Arya
S/o. Sh. Radha Krishan
R/o. 4A/32, First Floor,
Tilak Nagar, New Delhi.
5. Mrs. Babita Rani
W/o. Sh. Mahesh Kumar
R/o. 4A/32, First Floor,
Tilak Nagar, New Delhi.
6. Mrs. Aruna
D/o. Sh. Swaran Lal Sharma
R/o. H. No. 233, Pocket9,
Sector21, Rohini, Delhi.
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 2/26
7. Mrs. Promila
D/o. Sh. Swaran Lal Sharma
R/o. C/o. Ravinder Sharma
R/o. Rama Park, Uttam Nagar,
Mohan Garden, New Delhi.
8. Mrs. Urmil
D/o. Sh. Swaran Lal Sharma
R/o. C/o. Ravinder Sharma
R/o. Rama Park, Uttam Nagar,
Mohan Garden, New Delhi.
9. Mrs. Amita
D/o. Sh. Swaran Lal Sharma
R/o. C/o. Ravinder Sharma
R/o. Rama Park, Uttam Nagar,
Mohan Garden, New Delhi.
10. Mrs. Sarita
D/o. Sh. Swaran Lal Sharma
R/o. C/o. Ravinder Sharma
R/o. Rama Park, Uttam Nagar,
Mohan Garden, New Delhi.
11. Mrs. Sunita
D/o. Sh. Swaran Lal Sharma
R/o. C/o. Ravinder Sharma
R/o. Rama Park, Uttam Nagar,
Mohan Garden, New Delhi.
12. Shri Ravinder Sharma
S/o. Sh. Swaran Lal Sharma
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 3/26
R/o. H. No. I19, Rama Park,
Uttam Nagar, Mohan Garden
New Delhi. ....DEFENDANTS
Other Details:
Date of Institution : 18.11.2005
Date of Reserving Judgment : 14.08.2018
Date of Judgment : 11.09.2018
SUIT FOR CANCELLATION, POSSESSION, DAMAGES/MESNE
PROFITS, DECLARATION AND PERMANENT INJUNCTION
JUDGMENT
1. The background history of the suit, as per plaint, is that initially late Sh. Harbans Lal Sharma and late Sh. Swaran Lal Sharma became equal owners of 100 sqr. yards each of suit property bearing no. 4A/32, Tilak Nagar, New Delhi, total measuring 200 sqr. yards, pursuant to its partition with their other two brothers. Plaintiffs are sons of late Sh. Harbans Lal Sharma and are stated to be owner in possession of 100 sqr. yards of the suit property.
2. The suit property was granted by the Government of India to late Sh. Swaran Lal Sharma as the Karta of HUF consisting of himself and his three brothers in lieu of the value of properties left by them in Pakistan during partition. Thereupon, all the four brothers namely late Sh. Harbans Lal Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 4/26 Sharma, Sh. Swaran Lal Sharma, Sh. Tilak Raj Sharma and Sh. B.L. Sharma started to live in the suit property.
3. On 12/06/1968, three brothers, excluding B.L. Sharma, agreed to partition the suit property and divided it into two equal parts of 100 sqr. yards each - Eastern Part and Western Part. Eastern Part was given to late Sh. Swaran Lal Sharma, whereas, Western Part was given to late Sh. Harbans Lal Sharma. Their brother Sh. Tilak Raj Sharma was given a separate plot of land measuring 100 sqr. yards, whereas, Sh. B.L. Sharma was given consideration in lieu of his share in the suit property. Accordingly, Tilak Raj Sharma and B.L. Sharma left the suit property. In the Agreement dated 12/06/1968, Harbans Lal Sharma and Swaran Lal Sharma agreed that if they ever decided to sell their part of the suit property, they will sell it to each other only and will not sell or transfer their share to an outsider.
4. Harbans Lal Sharma raised construction in his portion of the suit property upto second floor, whereas, Swaran Lal Sharma raised no construction on the first floor except one improvised room.
5. Earlier, Sh. Swaran Lal Sharma had filed a suit no. 685/85 for perpetual injunction against his brother Harbans Lal Sharma in reference to Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 5/26 the suit property and stated in the suit that they had entered into a Deed of Agreement dated 12/06/1968 whereby they agreed not to sell their portion of the suit property to an outsider. In the plaint, the suit property was referred to as ancestral property. Swaran Lal Sharma alleged in the said suit that defendant Harbans Lal Sharma was attempting to sell a part of his portion to an outsider in violation of the Agreement dated 12/06/1968. The said suit was disposed of as withdrawn by plaintiff Swaran Lal Sharma on 23/01/1987, upon the death of Sh. Harbans Lal Sharma on the same day.
6. Before institution of present suit, the plaintiffs had filed the suit no. 455/93 on 20/10/1993 in the Court of Ld. ADJ, Delhi, for partition and perpetual injunction in respect of suit property.
7. Plaintiffs came to know that during his lifetime Swaran Lal Sharma executed an Agreement to Sell of suit property in favour of defendant no.3 Sh. Shrawan Kumar Arora @ Shrawan Kumar Soni on 08/03/1995. Defendant no.3 sold a shop at the ground floor of suit property to defendant no.4 Mahesh Kumar Arya on 12/04/1996 and gave the first floor of suit property on rent to defendant no.5 Babita Rani. Defendant no.3 also executed a Sale Deed in respect of the suit property in favour of defendant no.1 Sanjeev Kumar and defendant no.2 Rakesh Kumar. These facts came to the Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 6/26 knowledge of the plaintiffs in suit no. 65/2005, instituted by defendants no. 1 and 2 against the plaintiffs in the Court of Ld. ADJ, Delhi.
8. On 13/04/1994, defendant no.3 Shrawan Kumar Arora @ Shrawan Kumar Soni and his associates forcibly tried to dispossess the plaintiffs from the suit property regarding which FIR No.196/94 was registered against him. On 13/04/1994, defendant no.3 and his associates had also forcibly removed the wall on the first floor that divided the eastern and western portion of the suit property and also blocked the entry of the plaintiffs to the first floor and above.
9. Defendant No.4 Mahesh Kumar Arya and defendant no.5 Babita Rani had filed a suit no. 401/1996 for permanent and mandatory injunction against the plaintiffs and their mother, alleging that the suit property was owned by defendant no.3 Shrawan Kumar Arora who had sold a shop at the ground floor to Mahesh Kumar Arya and rented out the entire first floor to Mrs. Babita Rani. They sought injunction against the plaintiffs herein in the said suit, which was declined by the Court. An FIR No. 387/96 dated 24/05/1996, U/s. 448/506/34 IPC was also registered upon the complaint of plaintiffs against defendant no.4 Mahesh Kumar Arya and defendant No.3 Shrawan Kumar Arora when they forcibly tried to dispossess the plaintiffs from the suit property.
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 7/26
10. Defendants no. 1 and 2 are stated to have purchased the suit property from Shrawan Kumar Arora on 08/04/2003. Defendants no. 1 and 2 are stated to have filed the suit no. 65/2005 in the Court of Ld. ADJ, Delhi, for possession and mesne profits in respect of the suit property against the plaintiffs herein.
11. As per plaint, the cause of action to institute this suit arose in favour of plaintiffs in 1947 when Sh. Harbans Lal Sharma and his brothers migrated to India from Pakistan. The cause of action again arose when suit property was allotted to Sh. Swaran Lal Sharma in lieu of ancestral property in Pakistan. The cause of action again arose on 12/06/1968 when agreement of partition was entered into between Sh. Harbans Lal Sharma and his brothers. The cause of action again arose on 23/12/1993 when Agreement to Sell of suit property was entered between Sh. Swaran Lal Sharma and defendant no.3 Shrawan Kumar Arora. The cause of action again arose when FIRs were registered against defendants no. 3 and 4 on 14/04/1994 and 24/05/1996 when they forcibly tried to dispossess the plaintiffs from the suit property. The cause of action again arose when Shrawan Kumar Arora executed the Sale Deed of suit property in favour of defendants no. 1 and 2 on 08/03/2003. The cause of action again arose when defendants no. 1 and 2 filed civil suit no. 65/2005 in the Court of Ld. ADJ, Delhi.
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 8/26
12. Plaintiffs have sought the following reliefs in this suit:
(a) Decree of cancellation of Agreement to Sell dated 08/03/2003 (sic), executed by Sh. Swaran Lal Sharma in favour of defendant no.3. Shrawan Kumar Arora; decree of cancellation of Agreement to Sell in respect of the shop in the suit property, executed by Shrawan Kumar Arora in favour of defendant no.4 Mahesh Kumar Arya; decree of cancellation of Sale Deed dated 08/04/2003 in respect of the suit property, executed by Shrawan Kumar Arora in favour of defendant no. 1 Sanjeev Kumar and defendant no. 2 Rakesh Kumar.
(b) Decree of possession of remaining portion in the suit property that is in possession of the defendants, as shown in yellow and red colour in the site plan filed by the plaintiffs.
(c) Decree of directions to the defendants to execute the Sale Deed of the suit property in favour of the plaintiffs in terms of agreement of partition dated 12/06/1968.
(d) Alternatively, decree of possession of first and second floor of western portion, measuring 100 sqr. yards of suit property, against the defendants.
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 9/26
(e) Decree of declaration that the plaintiffs are owner of western side of the suit property, measuring 100 sqr. yards.
(f) Decree of damages/mesne profits @ Rs.5,000/ p.m. alongwtih interest against the defendants for use and occupation of first floor of the western portion of the suit property.
(g) Decree of permanent injunction against defendants no. 1 and 2 to restrain them from selling or creating any third party interest in the suit property.
13. In response to the suit, defendants no. 1 and 2 filed their written statement and raised the objection that the suit was barred by limitation and by Benami Transaction (Prohibition) Act. They raised the objection of mis joinder of remaining defendants. Defendants no. 1 and 2 asserted that present suit was liable to be stayed U/s. 10 CPC in view of prior CS No. 65/2005, instituted by them against the plaintiffs. They asserted that the plaint was liable to be rejected under Order VII Rule 11 CPC as the plaintiff's claim was based upon an unregistered partition deed.
14. Defendants no. 1 and 2 denied that there was any agreement of Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 10/26partition between Harbans Lal Sharma and Swaran Lal Sharma and their brothers in respect of the suit property. They asserted plaintiffs were in illegal and unauthorized occupation of 90 sqr. yards of the suit property on the ground floor. They asserted that late Sh. Swaran Lal Sharma was the absolute owner of the suit property and he had sold it to Sh. Shrawan Kumar Arora. They denied that suit property was allotted as an HUF property by the government. They denied that late Sh. Swaran Lal Sharma was not entitled to sell the suit property to anyone except his brother Harbans Lal Sharma.
15. Defendants no. 1 and 2 denied that suit property was divided into the eastern and western portion and late Sh. Harbans Lal Sharma was the owner of western portion of the suit property. They averred that they had no knowledge or concern with past disputes of plaintiffs with anyone in respect of the suit property. They asserted that they had purchased the suit property vide registered Sale Deed dated 08/04/2003, executed by Sh. Shrawan Kumar Arora, whereas, plaintiffs were in illegal occupation of 90 sqr. yards at the ground floor of the suit property, which they were liable to vacate. They denied the entire claim of the plaintiffs.
16. Defendants no. 6 to 12 separately filed their joint written statement and stated that the present suit was not maintainable against them as they were Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 11/26neither in possession of the suit property nor had any concern with it. They objected that the plaintiffs did not implead their sisters in the present suit, although, they were necessary parties to the suit. Defendants no. 6 to 12 raised no specific defence to the suit.
17. In pursuance of rival pleadings of the parties, following issues were framed by the Court on 05/03/2007:
(i) Whether the suit is barred by Limitation? OPDI.
(ii) Whether the suit is bad for misjoinder of parties? OPD1 & 2.
(iii) Whether the suit is barred by Benami Transaction (Prohibition) Act?
OPD1 & 2.
(iv) Whether suit is liable to be stayed U/s. 10 CPC? OPD1 & 2.
(v) Whether the plaint is liable to be rejected in view of preliminary objection no.7 of the written statement of defendant no.1? OPD 1 & 2.
(vi) Whether the suit against defendants no. 6 to 12 is not maintainable?
OPD6 to 12.
(vii) Whether the plaintiff is entitled to a decree of cancellation of the Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 12/26Agreement to Sell and related documents executed by Swaran Lal Sharma in favour of Shri Shrawan Kumar Arora on 08.03.2003 or on any other date with respect to the suit property No.4A/32, Tilak Nagar, New Delhi?
(viii) Whether the plaintiff is entitled to a consequential cancellation of Agreement to Sell executed by Shri Shrawan Kumar Arora in favour of Sh. Mahesh Kumar Arya with respect to one shop on 12.04.1996?
(ix) Whether the plaintiff is entitled to a consequential cancellation of Sale Deed executed by Shri Shrawan Kumar Arora in favour of Shri Sanjeev Kumar and Shri Lokesh Kumar?
Vide order dated 19/04/2007, following two additional issues were framed by the Court:
(x) Whether the plaintiff is entitled to a decree of possession of the first and second floor measuring 200 sqr. yards of the property of Eastern side of the suit property bearing No. 4A/32, Tilak Nagar, New Delhi, as shown red in the site plan? OPP.
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 13/26(xi) Whether the plaintiff is entitled to a decree of mesne profits. If so, at what rate and for what period? OPP.
(xii) Relief.
18. In order to prove their case, the plaintiffs examined following seven witnesses:
(a) PW1 is plaintiff Dinesh Kumar Sharma. He relied upon the documents Ex. PW1/1 to Ex. PW1/13.
(b) PW2 is Sh. Satish Kumar Ahuja, UDC, Record Room (Sessions), Tis Hazari Courts. He produced the original file of suit no. 344/2004/1993, titled as Dinesh Kumar Sharma Vs. Sohan Lal Sharma, decided by Ld. ADJ, Delhi, on 09/05/2006, the certified copy of which is Ex. PW1/5.
(c) PW3 is Sh. Sanjay Kumar, Mauza Clerk, Record Room (Civil), Tis Hazari Courts. He produced the original record of suit no. 401/1996 titles as Mahesh Kumar Arya Vs. Kaushalya Devi. The copy of the suit is Ex. PW1/9 and the copy of order passed in the suit is Ex. PW1/10. The copy of application filed by defendants no. 1 and 2 under Order I Rule 10 CPC is Ex. PW1/13.
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 14/26(d) PW4 is Sh. Rajesh Kumar Yadav, Asstt. Ahlmad in the Court of Ld. MM, Rohini Courts. He produced the two original files of case FIR No. 387/1996, titled as State Vs. Surender Kumar etc., and case FIR No. 196/1994, titled as State Vs. Swaran Kumar.
(e) PW5 is Ms. Bhupender Kaur, owner of H. No. 4A/2, Tilak Nagar, New Delhi. She produced documents of Lease Deed of the said property, the copy of which is Ex. PW5/1.
(f) PW6 is Sh. Sunil Kumar, UDC, L&DO Office, PS1, Nirman Bhawan, New Delhi. He produced the summoned allotment record of the suit property from the L&DO Office. The letter dated 01/10/1954 issued by the Government of India, Ministry of Rehabilitation to Sh. Swaran Lal Sharma, is Ex. PW6/1.
(g) PW7 is Sh. Raghuvir, LDC, Ministry of Home Affairs, Settlement Wing, Jaisalmer House, New Delhi. He produced the summoned record regarding settlement of rehabilitation claim of Sh. Swaran Lal etc. The copy of order dated 10/01/1952 passed by Claims Officer, Government of India, is Ex. PW7/1.
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 15/2619. Defendants examined two witnesses in support of their case. DW1 is defendant no.1 Sanjeev Kumar who purchased the suit property from defendant no.3 Shrawan Kumar Arora vide sale deed dated 08.04.2003. DW2 is Ankit Manocha who purchased the suit property from defendant no.1 Sanjeev Kumar vide sale deed dated 10.02.2012 Ex.DW2/1.
20. I have heard the final arguments from both the sides and analyzed the evidence adduced by the parties. Now, my issuewise findings are as under:
21. Issue No.(ii): Whether the suit is bad for misjoinder of parties?
OPD1 & 2.
Issue No.(vi): Whether the suit against defendants no. 6 to 12 is not maintainable? OPD6 to 12.
21(a). In their written statement, the defendants raised the objection that the suit was bad for misjoinder of all the defendants except defendants no. 1 and 2 as they had no concern with the suit property, neither were they in possession thereof. Admitted situation in the suit is that defendant no. 3 Shri Sharvan Kumar Arora had sold the suit property to defendants no. 1 and 2 namely Sanjeev Kumar and Rakesh Kumar vide sale deed dated 08.04.2003.
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 16/26Thus, defendant no.3 was a necessary party to the suit as the predecessorin interest of defendants no. 1 and 2 in respect of suit property. Plaintiffs had prior disputes with defendants no. 4 and 5 namely Mahesh Kumar Arya and Smt. Babita Rani, who had claimed in a civil suit that Sharvan Kumar Arora was the owner of the suit property. Thus, defendants no. 4 and 5 were also necessary and proper parties to the suit. Defendants no. 6 to 12 are children and legal heirs of Late Shri Swaran Lal Sharma whose title over the suit property has been challenged by plaintiffs in the present suit. Hence, they are proper parties to the suit, although, not the necessary parties. Hence, the suit does not suffer from any defect of misjoinder of parties. The suit was maintainable against all the defendants. Issues no. 1 and 6 are decided in favour of the plaintiffs and against the defendants.
22. Issue No.(iii): Whether the suit is barred by Benami Transaction (Prohibition) Act ? OPD1 & 2.
22(a). This issue was framed in view of objection raised by defendants no. 1 and 2 in their written statement that the suit was barred by Benami Transactions (Prohibition) Act, 1988. Defendants no. 1 and 2 did not elaborate in their written statement as to how the suit was covered and barred by the said Act, neither adduced any evidence in this regard.
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 17/2622(b). In the present case, plaintiffs led evidence through documents Ex.PW6/1 and Ex.PW7/1 to show that the suit property was allotted on 08.10.1954 by the Ministry of Rehabilitation, Govt. of India in the name of Sh. Swaran Lal Sharma as Karta of Joint Hindu Family consisting of himself and his brothers namely Harbans Lal, Bansi Lal and Tilak Raj. The suit property was allotted to Shri Swaran Lal Sharma as the Karta of Joint Hindu Family in lieu of the value of the ancestral properties left by him and his brothers in Pakistan during partition. Thus, the allotment of suit property was for the benefit of all the four brothers, including Harbans Lal Sharma and Swaran Lal Sharma. The present case is not covered by the Benami Transactions (Prohibition) Act, 1988, as the suit property was not held benami in the name of late Sh. Swaran Lal Sharma but was in the joint ownership of all the four brothers, through late Sh. Swaran Lal Sharam as Karta of Joint Hindu Family. The defendants have not led any evidence to the contrary. Accordingly, Issue no.3 is decided in favour of the plaintiff and against the defendants.
23. Issue No.(iv): Whether suit is liable to be stayed U/s. 10 CPC?
OPD1 & 2.
23(a). Defendants no. 1 and 2 asserted in the written statement that they instituted the suit bearing CS No. 65/2005 prior in time to the suit instituted Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 18/26by the plaintiffs herein. The suit instituted by both the rival parties pertained to the same suit property. Hence, the suit instituted by the plaintiffs, being later in time, was liable to be stayed till decision upon the suit for possession instituted by defendants no. 1 and 2 against them.
23(b). I find that the rival suits instituted by the parties were entirely different in their nature and scope, although, both pertained to the suit property. The several reliefs of decree of cancellation, possession, declaration, damages and permanent injunction sought by the plaintiffs herein were beyond the scope of CS No. 65/2005 instituted by defendants no. 1 and 2. Hence, Issue No. 4 is decided in favour of the plaintiffs and against the defendants.
24. Issue No.(v): Whether the plaint is liable to be rejected in view of preliminary objection no.7 of the written statement of defendant no.1? OPD 1 & 2.
24(a). In the preliminary objection no.7 of their written statement, defendants no. 1 and 2 asserted that the suit was liable to be dismissed (sic) under Order VII Rule 11 CPC as the plaintiffs have based their claim on an alleged partition deed which is not a registered document and is inadmissible in evidence for any purpose.
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 19/2624(b). In this regard, I find that the plaintiffs have relied upon a deed of agreement dated 12.06.1968 Ex.PW1/2, vide which the joint family properties, including the suit property were partitioned amongst Sh. Swaran Lal Sharma, Sh. Harbans Lal Sharma and Sh. Tilak Raj Sharma. However, the title of the plaintiffs over the suit property originated not from the deed of agreement dated 12.06.1968, but from the documents Ex.PW6/1 (Letter dated 08.10.1954 issued by Regional Settlement Commissioner, Ministry of Rehabilitation, Govt. of India) and Ex.PW7/1 (Order dated 10.01.1952 passed by Claims Officer, Amritsar, Govt. of India). Thus, the suit was not dependent solely upon admissibility of the deed of agreement dated 12.06.1968. The suit, as framed, was admissible and was not liable to be rejected under Order VII Rule 11 CPC in view of objection of defendants no. 1 and 2. Hence, Issue no. 5 is decided in favour of the plaintiffs and against the defendants.
25. Issue No.(i): Whether the suit is barred by Limitation? OPDI. Issue No.(vii): Whether the plaintiff is entitled to a decree of cancellation of the Agreement to Sell and related documents executed by Swaran Lal Sharma in favour of Shri Shrawan Kumar Arora on 08.03.2003 or on any other date with respect to the suit property No.4A/32, Tilak Nagar, New Delhi?
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 20/26Issue No.(viii): Whether the plaintiff is entitled to a consequential cancellation of Agreement to Sell executed by Shri Shrawan Kumar Arora in favour of Sh. Mahesh Kumar Arya with respect to one shop on 12.04.1996?
Issue No.(ix): Whether the plaintiff is entitled to a consequential cancellation of Sale Deed executed by Shri Shrawan Kumar Arora in favour of Shri Sanjeev Kumar and Shri Lokesh Kumar?
25(a). In their evidence, plaintiffs relied upon the certified copy of complaint dated 13/04/1994, Ex. PW1/6, lodged by plaintiff Dinesh Kumar Sharma in PS Tilak Nagar. In the said complaint, complainant Dinesh Kumar alleged that his uncle Sh. Swaran Lal Sharma had sold the rear portion of the suit property to someone around six months ago and the purchasers have threatened him with weapon and demolished the partition walls of the house. The purchaser and his associates had thrown away the belongings to complainant Dinesh Kumar. The complaint Ex. PW1/6 for committing criminal trespass, mischief and causing hurt was lodged by name against defendant no.3 Shrawan Kumar S/o. Sh. Soni Ram. Upon the complaint dated 13/04/1994, Ex. PW1/6, FIR No. 196/94 was registered and police filed the charge sheet U/s. 451/427/323/34 IPC, Ex. PW1/7, against defendant no.3 Shrawan Kumar and his associates.
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 21/2625(b). I find that the cause of action for the plaintiffs to institute the suit for cancellation of sale documents of the suit property, executed by late Sh. Swaran Lal Sharma in favour of defendant no.3 Shrawan Kumar, occurred on 13/04/1994 when the plaintiffs lodged complaint Ex. PW1/6 in PS Tilak Nagar. The limitation period of the same lapsed in three years of 13/04/1994. The present suit being instituted on 18/11/2005, it is clearly barred by limitation.
25(c). Similarly, FIR No. 387/96, U/s. 448/506/34 IPC was registered in PS Tilak Nagar against defendant no.3 Shrawan Kumar and defendant no.4 Mahesh Kumar Arya upon complaint dated 24/05/1996, Ex. PW1/11, of mother of the plaintiffs. The said FIR was registered when the accused persons (defendants no.3 and 4) allegedly attempted to trespass into the suit property to take wrongful possession of the shop located in it, on 24/05/1996. The charge sheet Ex. PW1/12 was filed by police in case FIR No. 387/96 against defendants no. 3 and 4. Thus, the present suit, being instituted on 18/11/2005 for cancellation of the Agreement to Sell dated 12/04/1996 allegedly executed by defendant no.3 Shrawan Kumar Arora in favour of defendant no.4 Mahesh Kumar Arya in respect of the shop located in the suit property, is barred by limitation.
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 22/2625(d). The right of plaintiffs to sue in respect of Sale Deed dated 08/04/2003, executed by defendant no.3 Shrawan Kumar Arora in favour of defendants no. 1 and 2 depended upon an existing right of plaintiffs to sue for cancellation of sale documents dated 20/12/1993 executed by late Sh. Swaran Lal Sharma in favour of defendant no.3 Shrawan Kumar Arora. Since the relief sought by plaintiffs for cancellation of the sale documents dated 20/12/1993 executed by late Sh. Swaran Lal Sharma in favour of defendant no.3 Shrawan Kumar Arora is barred by limitation, the reliefs for cancellation of all subsequent sale documents, including the Sale Deed dated 08/04/2003 and the Sale Deed Ex. DW2/1 dated 10/02/2012, executed in respect of the suit property also became barred by law.
The suit is patently barred by limitation and the plaintiffs are not entitled to decree of cancellation of sale documents executed in respect of the suit property. Issues no. (i), (vii), (viii) and (ix) are decided against the plaintiffs and in favour of the defendants.
26. Issue No.(x): Whether the plaintiff is entitled to a decree of possession of the first and second floor measuring 200 sqr. yards of the property of Eastern side of the suit property bearing No. 4A/32, Tilak Nagar, New Delhi, as shown red in the site plan? OPP.
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 23/26Issue No.(xi): Whether the plaintiff is entitled to a decree of mesne profits. If so, at what rate and for what period? OPP.
26(a). The plaintiffs asserted that through the deed of agreement dated 12/06/1968, the suit property, measuring 200 sqr. yards was proposed to be divided into two parts - eastern part and western part, to be shared only by Sh. Swaran Lal Sharma and Sh. Harbans Lal Sharma. The remaining two brothers were not to have any share in the suit property, their share being adjusted elsewhere. It is nowhere mentioned in unregistered deed of agreement dated 12/06/1968, Ex. PW1/2, that the suit property was to be divided equally; the ratio of division of the suit property into eastern and western part is not mentioned. No site plan is attached with the deed of agreement Ex. PW1/2. Thus, unto itself, this document was a vague document and was subject to evidence of actual division, if any, carried out by the parties. No such evidence was adduced by the plaintiffs.
26(b). The plaintiffs have not proved that the terms of agreement Ex. PW1/2 were implemented by its signatories or that the defendants trespassed into any portion of the suit property already occupied by the plaintiffs, except an ipse dixit statement of PW1 Dinesh Kumar, which was denied by the defendants. The plaintiffs instituted no civil action for possession of first and second floor Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 24/26of the alleged western portion of the suit property for eleven years from 13/04/1994 when Shrawan Kumar Arora and his associates allegedly trespassed and encroached upon the portion belonging to the plaintiffs in the first floor and second floor of the suit property by breaking the locks and demolition of the partition walls. The present case was instituted by the plaintiffs only on 18/11/2005, in response to the civil suit no. 12222/16 (old no. 65/05) instituted by defendants Sanjeev Kumar and Rakesh Kumar on 28/03/2005 for possession and mesne profits in respect of the portion in which plaintiffs resided at the ground floor of the suit property. The failure of the plaintiffs to institute suit for possession for more than eleven years after 13/04/1994 militates against their assertion of prior possession of first floor and second floor portion of the suit property. In any case, the plaintiffs adduced no evidence of any such prior possession.
26(c). Thus, the right of the plaintiffs to sue for possession of the part of the suit property depended upon their right to sue for cancellation of the sale documents dated 20/12/1993 executed in respect of the suit property by late Sh. Swaran Lal Sharma. The right of plaintiffs to sue for cancellation being held barred by law, their suit for possession of the portion of suit property on the basis of documents Ex. PW1/2, Ex. PW6/1 and Ex. PW7/1 is also not maintainable. The plaintiffs are not entitled to the decree of possession and Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 25/26mesne profits. Issues No. (x) and (xi) are decided in favour of the defendants and against the plaintiffs.
27. Relief: In view of above mentioned observation and analysis, the suit is dismissed as being barred by limitation period and as not maintainable. No order for costs. Decree sheet be prepared accordingly.
28. File be consigned to record room after completion of all legal formalities.
Digitally
signed by
VISHAL
Announced in open Court
VISHAL SINGH
SINGH Date:
Dated: 11.09.2018 2018.09.11
16:17:43
+0530
(VISHAL SINGH)
Addl. District Judge06 (Central)
Tis Hazari Courts, Delhi
Sh. Dinesh Kumar Sharma & Ors.
Vs. Sh. Sanjeev Kumar & Ors. CS No. 10162/16 Page No. 26/26