Delhi District Court
Laxmi Devi Who Is Now Deceased Through ... vs Sh. Sanwal Singh Deceased Through Legal ... on 7 November, 2019
IN THE COURT OF NEHA MITTAL: CIVIL JUDGE10,
CENTRAL, TIS HAZARI COURTS : DELHI
Suit No. 95332/16
In reference:
1. Laxmi Devi who is now deceased through her legal heirs:
2. Subhash Chand S/o late Sh. Musaddi Lal
3. Sewa Singh Chauhan S/o late Sh. Musaddi Lal
4. Ashok Kumar S/o late Sh. Musaddi Lal
5. Anil Kumar Chauhan S/o late Sh. Musaddi Lal
R/o H. No. B8, Molarband Extn., Main Market,
Badarpur, Delhi.
6. Ms. Sarita D/o late Sh. Musaddi Lal
All (except Anil Kumar) resident of :
38, Summan Bazar, Jungpura, Bhogal,
New Delhi110014.
7. Smt. Swaraj Bala W/o Sh. Nand Kishore
D/o late Sh. Musaddi Lal
R/o H.No.602, C1, Ward No.3, Mehrauli, New Delhi.
8. Smt. Shyam Lata, W/o Sri Rajinder Kumar,
D/o late Sh. Musaddi Lal
R/o 139, Badarpur, New Delhi.
..Plaintiffs
VERSUS
1. Sh. Sanwal Singh deceased through legal heirs :
i) Sri Jagdish Son
ii) Sri Harsh Kumar Son
iii) Mrs. Nirmala Devi - Daughter
iv) Mrs. Asha Daughter
All R/o 40, Summan Bazar, Jungpura, Bhogal, New Delhi.
... Defendants
No.95332/16
Laxmi Devi vs. Sanwal Singh Page No.1/23
Date of Institution : 29.08.1991
Date of reservation of Judgment : 21.10.2019
Date of Judgment : 07.11.2019
SUIT FOR RECOVERY OF POSSESION, DECLARATION
AND DEMOLITION OF UNAUTHORIZED CONSTRUCTION
JUDGMENT
1. Vide this judgment, I shall dispose of the aforementioned suit. This is a suit for possession, declaration and direction for demolition of unauthorised temporary construction filed by the plaintiff against the defendants thereby praying for decree of recovery of possession of Room marked as GHEY in the site plan existing at the ground floor alongwith right of roof of the house property and a declaratory decree in favour of plaintiffs and against the defendant no.1 thereby declaring to the effect that the plaintiffs are the owners of the disputed portion (viz. Room marked as GHEY in the enclosed site plan existing at the ground floor alongwith right of roof) and direction for demolition of unauthorized temporary construction from first floor to fourth floor.
PLAINT:
2. As per the averments made in the plaint, the brief facts are that originally a plot of land bearing no.40, situated at Summan Bazar, No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.2/23 Jungpura, Bhogal, New Delhi110014 was alloted from the Department of Improvement Trust, New, on lease hold basis vide lease deed dt. 02.02.1950 duly registered with the concerned Sub Registrar Delhi at S. No.558 Addl. Book No.1 Vol. No.139 on pages from 169 to 173 on 22.02.1950, to late Sh. Ram Singh, who was the fatherinlaw of the plaintiff no.1 and the grandfather of the plaintiff no.2 to 8 and the father of the defendant no.1 and whereupon said late Ram Singh constructed the superstructure, comprising ground floor and first floor out of his own pocket and funds; that later on said late Sh. Ram Singh sold various separate portion of the aforesaid house premises to four of his sons namely Sh. Mohan Lal vide sale deed dt. 18.10.64, to Sh.Mangat Ram vide sale deed dt. 03.12.64, to Sh. Hardial Singh vide sale deed dt. 14.09.64 and to Sh. Laxmi Narain vide sale deed dt. 31.12.64 leaving behind certain remaining portion of the said house with himself; that out of the aforesaid remaining portion, previously said Late Sh. Mussadi Lal and after his death his legal heirs and representatives i.e. the plaintiffs no.1 to 8 have been in exclusive use and occupation of one shop admeasuring 6'x3' (shown as 'KAI' in hindi in the said plan) and portion adjacent to the shop (shown as 'KHEY' in Hindi in the said plan) continuously and uninterruptedly for the last 45 years; that adjoining to the aforesaid property, there exists another property bearing municipal no.38, situated at Summan Bazar, Bhogal, New Delhi which belongs to the plaintiffs and two No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.3/23 gates of the said property no.38 opens in the said property no.40, Summan Bazar, Bhogal, New Delhi; that one of the aforesaid gate of the aforesaid property no.38 Summan Bazar, Bhogal, New Delhi opens in the portion 'KHEY' as shown in the said plan for using the same as passage and the other gate of property no.38 Summan Bazar, Bhogal, New Delhi opens in the courtyard of the aforementioned house property no.40; that apart from the above portions shown as 'KAI' and 'KHEY' in Hindi in the said plan other portions shown as 'GAI' and 'GHEY' in Hindi said plan are also in complete, continuous and uninterrupted use and occupation of the plaintiffs no.1 to 8 for the last about 45 years.
3. It has further been submitted that later on Sh. Sanwal Singh the defendant no.1 started claiming his ownership over the aforesaid portion in question of the said house property on the basis of the same having been bequeathed to him by his father said late Sh. Ram Singh by virtue of a false, forged and fabricated will dt. 12.10.62 allegedly executed by said late Sh. Ram Singh in his favour; that subsequently said Sh. Mussaddi Lal had no other alternative but to file a suit for declaration (135/73) to the effect that the said alleged Will dt. 12.10.1962 allegedly executed by said Sh. Ram Singh is void and illegal. The said suit was dismissed on 14.12.1978 from Hon'ble Court of Smt. Mamta Sehgal, Sub Judge, 1st Class, Delhi; that thereafter said Sh. Mussaddi Lal went in appeal against the said dismissal order dt.
No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.4/2314.12.1978 and the said appeal is still pending in the Hon'ble High Court of Delhi.
4. It has further been submitted that subsequently the defendants herein filed a suit for possession against Sh. Mussaddi Lal in respect of a small portion of the aforesaid house no.40 on the basis of Will dt. 12.10.1962 which was dismissed vide judgment dt. 08.12.1997; that presently on or about 24.01.90 the plaintiffs have come to know about a Will dt. 18.10.1970 duly executed by said Late Sh. Ram Singh through one of their relatives Sh. Rajinder Kumar S/o Sh. Surat Singh r/o village Raj Pur, Distt. Sonepat, Haryana by virtue of which Will said Sh. Ram Singh has cancelled his all other previous Will or Wills, if any, and bequeathed the following portions in favour of Sh. Mussaddi Lal:
a) One shop measuring 6'x3' which opens towards Summan Bazaar and which exists on the right hand side while entering into property in question through the main gate adjoin the property no.38,
b) vacant space measuring 17'x6' existing in the back of the above shop wherein the electric meters in the name of late Sh. Mussaddi Lal are installed,
c) one wooden khoka measuring 7'x3' the gate of which open towards Summan Bazar and exists on the left hand side while entering into the house property in question through its main gate, and behind which exists on room belonging to Sh. Lachmi Narain, No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.5/23
d) one room measuring 10'x8' which exists in the inner corner at the right hand side of said house property and in which Sh. Sanwal Singh, one of the son of said Sh. Ram Singh, is residing.
5. It is further submitted that now by virtue of the aforesaid Will dt. 18.10.1970 said late Sh. Mussaddi Lal became the exclusive owner of the aforesaid portion as mentioned in para no.10 above right from ground floor up to the top floor immediately after the death of his father late Sh. Ram Singh on 14.09.1972; that plaintiffs no.1 to 8 being legal heirs and representatives of late Sh. Mussaddi Lal also became the owner(s) of the said portion; that the defendant Sanwal Singh has been using and occupying one room measuring 10'x8' (most specifically shown in 'GHEY' in the said plan) wrongly and illegally; apart from the aforesaid room, the defendant no.1 has also wrongly, illegally constructed one tin shed just above the aforesaid room without the permission and authority of the plaintiffs and has also been occupying and using the said tin shed for his residence; that the defendant no.1 Sanwal Singh, therefore, is a trespasser in the aforesaid room and tin shed for the last so many years and as such is liable to pay damages for such wrongful usage and occupation at the rate of Rs.450/ p.m. in respect of the aforesaid room and at the rate of Rs.200/ p.m. in respect of the aforesaid tin shed, thus totaling Rs.650/ p.m. to the plaintiffs no.1 to 8 besides being dispossessed there from.
No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.6/236. Vide order dt. 07.08.19, application of plaintiff u/o 6 rule 17 CPC was allowed and amended plaint was taken on record wherein it has been stated that even after being well aware about the pending of the present civil suit for adjudication, the LRs of defendant no.1 i.e. D 1(i) and D(ii) in collusion with the other remaining LRs of defendant no.1 have raised the temporary construction after removal of tin shed up i.e. 1st floor to fourth floor upon the same portion in question shown as GHEY in the enclosed site plan alongwith the plaint; that the newly temporary constructed portion i.e. 1 st floor to 4th floor are illegal and the same has been constructed by LRs of defendant no.1 without obtaining permission from either of the plaintiffs who are in fact the absolute owners of the portion in question by virtue of the Will dt. 18.10.1970 executed by undisputed owner Late Sri Ram Singh in favour of Late Sri Mussaddi Lal the father of the plaintiffs. Therefore, the newly constructed portion is required to be demolished. Hence, the present suit.
DEFENSE:
7. In written statement filed on behalf of defendant no.1 to 3 & 5, it is stated that the plaintiffs have forged and fabricated the Will dt. 18.10.1970 alleged to have been executed by Late Sh. Ram Singh; that the plaintiffs have not filed the original Will or its copy on record intentionally; that admittedly Late Sh. Ram Singh had left a Will dt.
No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.7/2312.10.1962 in respect of the suit property; that Sh. Musadi Lal (husband of plaintiff no.1) had filed a suit for declaration to the fact that the Will dt. 12.10.62 was void and illegal, which was dismissed on 14.12.1978; that although the plaintiffs have stated that an appeal against the judgment and decree dt. 14.2.1978 is pending in the Hon'ble High Court of Delhi but the defendants are not aware of any such appeal; that the suit property has not been valued properly and current market value of the suit is not less that Rs.2 lacs; that Sh. Ram Singh was seriously ill after 1968 and he was bedridden in the house of answering defendants, he was also not in proper disposing mind and had lost all capacity to understand. Rest of the averments made in the plaint have been denied.
8. No written statement was filed on behalf of defendants no.4,6&7.
REPLICTION :
9. In replication, the averments made in written statement have been denied and that of the plaint are reasserted.
ISSUES:
10. Following issues were framed vide order dt. 07.09.1993 : i. Whether the suit of plaintiff is correctly valued for the purpose of jurisdiction of courtfees?
No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.8/23ii. Whether the plaintiff is entitled for the relief claimed ?
iii. Relief.
PLAINTIFF EVIDENCE :
9. The witnesses have not been numbered correctly in record and hence, their numbering was corrected vide order dt. 21.10.19 on application u/s. 151 CPC filed on behalf of plaintiff. To prove the preliminary issue, plaintiff has examined 3 witnesses.
PW1 Shri Ajay Saxena, draftsman prepared the site plan ExPW1/1 in which the suit property has been shown in red color.
PW2 Shri B.P. Singh, Valuer, Civil, E6, Palika Niketan, has proved his valuation report ExPW2/1 and stated that the same was prepared by him after visiting the site.
PW6 (mentioned as PW3 in record) Shri Subhash Chand is one of the plaintiff who has stated that valuation of disputed portion is Rs.2000/ as the same is in damaged condition.
10. To prove the case qua the remaining issues, plaintiff has examined the following witnesses:
PW3 (mentioned as PW1 in record) Shri Mritynjay Kumar, Assistant Ahlmad in the court of Sh. Ashish No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.9/23 Aggarwal, the then Civil Judge has brought the summoned file and proved the certified copy of judgment and decree dt. 08.12.1997 as ExPW1/1 and ExPW1/2.
PW4 (mentioned as PW2 in record) Ms. Rajani, Assistant Ahlmad in the court of Ms. Ravinder Bedi, the then Civi Judge Delhi, has brought the summoned record i.e. Will dt. 18.10.1970 ExPW2/1. PW5 (mentioned as PW2 in record) Shri Ram Dhani is the attesting witness of Will dt. 18.10.1970 and identified his signature at point A and of Sri Ram Singh at point B. PW6 (mentioned as PW3 in record) Shri Subhash Chand was again examined who tendered his evidence by way of affidavit ExPW1/A and relied upon site plan ExPW1/1, Will dt. 18.10.1970 ExPW1/2(also marked as ExPW2/1). He also tendered his additional affidavit ExPW6/AD in evidence and relied upon documents ExPW6/AD1 (Page no.4 to 11). Again he filed additional affidavit ExPW6/Addl1 wherein he deposed about the structural changes in suit property and relied upon the documents already ExPW3/A and ExPW6/AD1.No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.10/23
PW7 (mentioned as PW10 in record) Shri Amrish Kumar, Ahlmad has brought the summoned record i.e. suit titled Laxmi Devi vs. Mohan Lal bearing suit no.925/M and goshwara no.259/11 (Civil) and proved the statement of Ram Dhani Singh as ExPW6/AD1. PW8 (mentioned as PW9 in record) Shri Subhash Chandra Jain is a summoned witness and identified the signature of his father Sri Nandu Mal Jain who was one of attesting witness of Will dt. 18.10.1970 ExPW1/2.
PW9 (mentioned as PW9 in record) Shri Sewa Singh has tendered his evidence by way of affidavit ExPW9/1 and relied upon his aadhar card ExPW9/2. He has tendered his additional evidence by way of affidavit ExPW9/Addl.1 wherein he deposed about the structural changes in suit property. PW10 (mentioned as PW10 in record) Shri Anil Kumar tendered his evidence by way of affidavit ExPW10/1 and relied upon his voter card ExPW10/2 and statement of witness Jagdish Chander ExPW10/3. He has tendered his additional evidence by way of affidavit ExPW10/Addl.1 wherein he deposed about the structural changes in suit property.No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.11/23
PW11 (mentioned as PW11 in record) Shri Vishal Singh, JJA, Record Room (Civil), Central has brought the summoned record i.e. suit titled Mohan Lal vs. Mussadi Lal bearing no.34/80 and goshwara no.283/ND and proved the statement of Sh. P.L. Bhatia and Sh. Ram Dhani as ExPW6/AD1. PW12 (mentioned as PW12 in record) Sh. P.L. Bhatia is one of the attesting witness of Will ExPW1/2 who identified his signature at point P.
11. Vide separate statement, PE was closed.
DEFENCE EVIDENCE :
12. Sh. Sanwal Singh has examined himself as DW1 while leading evidence on preliminary issue and stated that value of suit property is more than Rs.5 lacs and that he got constructed the portion in his possession in May 1996.
13. Vide separate statement DE was closed on the point of valuation.
14. During the pendency of present suit, some defendants expired and applications were moved for impleading their LRs.
15. Vide order dt. 06.11.01, defendants were proceeded exparte due to non appearance. Thereafter, vide order dt. 15.10.04, LR no.5A and 5E were proceeded against exparte. Vide order dt. 02.02.05, No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.12/23 application u/o 22 rule 4 CPC for impleading LR no.5B to 5D was dismissed for non prosecution. Vide order dt. 30.07.05, LR A, B, D to H for deceased defendant no.2 were proceeded against exparte.
16. Thereafter, court notice were issued to all defendants vide order dt. 11.08.10 but subsequently vide order dt. 18.09.10, the defendants were proceeded against exparte. Thereafter, LR of deceased defendant no.3 were proceeded exparte vide order dt. 29.11.11.
17. In these circumstances, defense evidence was not led on remaining issues.
18. Vide order dt. 14.05.19, defendant no.2 to 7 were deleted from the array of parties on application u/o 1 rule 10 CPC.
FINAL ARGUMENTS:
19. I have heard the exparte final arguments and perused the written submissions filed on behalf of defendant.
FINDINGS OF THE COURT: Issue No.1 : Whether the suit of plaintiff is correctly valued for the purpose of jurisdiction of court fees?
20. The burden to prove this issue is upon plaintiff.
21. This issue was treated as preliminary issue vide order dt. 07.09.1993. The plaintiff has examined 3 witnesses to prove the No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.13/23 valuation of suit property whereas in defense defendant no.1 has examined himself as the sole witness on this point.
22. Perusal of cross examination of PW2 shows that the suggestion was put to this witness on behalf of defendant that the value of property is about Rs.2 lacs. The same suggestion was also put to PW3 during his cross examination. Further, it has been deposed by DW1 during his cross examination that at the time of filing of present suit, the room on the first floor had a tin shed. DW1 has also admitted the site plan ExPW1/1 to be correct. He has further deposed that the disputed portion was demolished and reconstructed in 1996 and before that suit property was old construction. Hence, going by the suggestion given on behalf of defendant, it is clear that the value of suit property as asserted by defendant was Rs.2 lacs which is within the pecuniary jurisdiction of this court. Further, DW1 has admitted that at the time of filing of suit, the construction of suit property was old and reconstruction was done later on. This makes the valuation as put forward on behalf of plaintiff to be trustworthy and correct.
23. Hence, this issue is decided in favour of plaintiff and against the defendant.
ISSUE NO.2 : Whether the plaintiff is entitled for the relief claimed ?
24. The burden to prove this issue is upon the plaintiff.
No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.14/2325. The plaintiff has relied upon Will dt. 18.10.1970 ExPW1/2 executed by Shri Ram Singh in favour of Shri Mussaddi Lal to prove his ownership over the portion marked as 'GHEY' in the site plan. To prove this Will, the plaintiff has examined PW4 who has brought the summoned record, attesting witness PW5 Ram Dhani, PW8 Subhash Chander Jain son of Late Sh. Nandu Mal (one of the attesting witness of said Will), PW12 Sh. Purshottam Lal. Plaintiff has also relied upon statements of attesting witnesses ExPW6/AD1 which were recorded in suit titled Laxmi Devi vs. Mohan Lal bearing suit no.925/M and goshwara no.259/11 (Civil); and judgment dt. 08.12.1997 ExPW1/3.
26. Before going into the evidentiary value of the afore stated evidence led by the plaintiff, it is necessary to discuss the provisions and law related to due execution and proof of Will as laid down u/s. 68 of Indian Evidence Act and Section 63 of Indian Succession Act. The principles regarding the proof of Will are as follows:
1. Section 63 of the Indian Succession Act declares the substantive law regarding the execution of an unprivileged 'Will' and it mandates that the testator has to sign or affix his mark in the presence of two or more attesting witnesses, it being not necessary that the two attesting witnesses should simultaneously be present to witness the execution of the 'Will'.
2. On a combined reading of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, it is clear that a person propounding the 'Will' must prove that the 'Will' was duly and validly No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.15/23 executed, and this cannot be done by simply proving that the signature on the 'Will' is that of the testator but by also proving that the attestations made on the 'Will' are in the manner (and form) as required by clause (c) of Section 63 of the Indian Succession Act.
3. Section 68 of the Indian Evidence Act gives a concession to those who want to prove and establish a 'Will' in the court of law by examining only one attesting witness, although, the 'Will' has to be attested by at least two witnesses as is mandatorily required by Section 63 of the Indian Succession Act. What is significant to note is that, the sole attesting witness who is examined to prove the 'Will' should be in a position to establish the due execution of the 'Will'. If the sole attesting witness can prove the due execution of the 'Will' in terms of clause (c) of Section 63 of the ISA then the rule of attestation by two attesting witnesses as contemplated in Section 63 of the ISA shall stand fulfilled. The sole attesting witness who is examined to prove the 'Will', in his evidence has to satisfy the attestation of the 'Will' not only by him but also by the other attesting witness, in order to prove that there was due execution of the 'Will'. If the sole attesting witness who is examined, besides his execution does not, in his evidence satisfy the requirements of attestation of the 'Will' by the other attesting witness, then, such an attestation falls short of the attestation of the 'Will' as required by Section 63 (c) of the ISA, for a simple reason that the execution of the 'Will' does not merely mean the signing of it by the testator but rather it means the fulfilling of all the formalities contemplated under Section 63 of the ISA. Jagdish Prasad v. State, No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.16/23 FAO (OS) 355/2008, High Court of Delhi, Decision Dated: 03.03.2015 (Pradeep Nandrajog & Pratibha Rani, JJ.
4. Where one attesting witness examined to prove the 'Will' under Section 68 of the IEA fails to prove the due execution of the 'Will', then, the other available attesting witness has to be called to supplement the evidence of the erstwhile attesting witness to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the 'Will' by the other witness then there will be deficiency in meeting the mandatory requirement of Section 68 of the IEA.
5. Section 68 of the IEA mandates that if an attesting witness to a 'Will' is alive then necessarily the 'Will' is to be proved by examining that attesting witness. However, Section 68 of the IEA has no application where there are no attesting witnesses alive or surviving.
6. Section 69 of the IEA comes into play when both (or all) the attesting witnesses to the 'Will' are dead (or cannot be found). Section 69 of the IEA states that, if both (or all) the attesting witnesses to the 'Will' are dead (or cannot be found) then the 'Will' is to be proved by proving that the attestation of at least one attesting witness to the 'Will' is in his handwriting, and that the signature of the testator on the 'Will' is in his own handwriting. In the case of Babu Singh & Ors Ram Sahay (2008) 14 SCC 754, it was observed that, Section 69 of the IEA would apply in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.17/23 search. As per the mandate contained in Section 69 of the IEA the 'Will' is to be proved by proving the handwriting of the testator and that those of the attesting witnesses.
7. A 'Will' has to be executed in the manner required by Section 63 of the ISA. Section 68 of the IEA requires that a 'Will' has to be proved by examining at least one attesting witness. Section 71 of the IEA is another connected section which in a way reduces the rigours of the mandatory provision of Section 68 of the IEA. Section 71 is meant to lend assistance and come to the rescue of a party which had done its best to prove the due execution of the 'Will' but was let down by the attesting witnesses, who either denied the execution of the 'Will' or failed to recollect the fact of execution of the 'Will' by the testator.
8. Section 71 of the IEA provides that if the attesting witness denies or does not recollect the execution of the document ('Will'), its execution may be proved by other evidence. Section 71 of the IEA is a sort of safeguard introduced by the legislature to the mandatory provisions of Section 68 of the IEA, where it is not possible to prove the execution of the 'Will' by calling the attesting witnesses, though alive. Section 71 of the IEA can only be requisitioned when the attesting witnesses who have been called fail to prove the execution of the 'Will' by reason of either their denying their own signatures, or denying the signatures of the testator, or having no recollection as to the execution of the document ('Will').
9. Section 71 of the IEA has no application when one attesting witness has failed to prove the due execution of the 'Will' and the other attesting witnesses are No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.18/23 available who can prove the execution of the 'Will' if they are called.
27. Reverting back to the facts of the present case, testimony of PW8 Subhash Chander Jain is irrelevant u/s.71 of Indian Evidence Act as some attesting witnesses to the said Will are alive and have also been examined. It has already been discussed above that Section 71 of the IEA is not applicable when the other attesting witnesses are available who can prove the execution of the 'Will' if they are called.
28. Heavy reliance has been placed upon judgment dt. 08.12.1997 stating that the validity of the Will has been upheld in the said judgment. However, perusal of judgment reveals that though it has been stated that Will has been validly executed, it has been mentioned therein that the findings on issue are valid for the disposal of this suit only. Hence, the said finding cannot be relied upon to adjudicate upon the validity of Will in the present case.
29. The relevancy of statements of attesting witnesses Sh. P.L. Bhatia and Sh. Ram Dhani ExPW6/AD1 relied upon by the plaintiffs has to be seen in light of Section 80 read with section 33 of Indian Evidence Act. Section 80 provides that if any document is produced before any court purporting to be a record or memorandum of evidence, the court shall presume that the document is genuine and that any statement as to the circumstances under which it was taken, No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.19/23 purporting to be made by the person signing it, are true. However, this section will not apply to any statement failing to satisfy the provisions of section 33 of Indian Evidence Act. A reading of Section 33 of Indian Evidence Act shows that it applies only in those situations when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the court considers unreasonable. However, in the present case, both these witnesses have already been examined as PW5 and PW12. Hence, their statements made in the former suit cannot be said to be relevant u/s. 33 of Indian Evidence Act. Even otherwise, Sh. P.L. Bhatia had stated in his statement ExPW6/AD1 that he does not know whether Ram Singh was present or not when the Will was signed by him. This fact in itself displaces the case of the plaintiff.
30. Perusal of statement of PW12 P.L. Bhatia shows that he has only stated that he signed upon the said Will as one of the witness at point P and that Ram Singh had executed a Will in favour of late Mussaddi Lal. He has failed to depose about the attestation of the Will by any other witness and has also not specifically stated anything about the signing of the said Will by executant.
31. Perusal of testimony of PW5 Ram Dhani shows that he had No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.20/23 identified his signature on the said Will and has identified the signature of executant also. However, this witness has nowhere deposed that the executant Ram Singh had put his signature on the Will in question in his presence after fully understanding the same.
32. Perusal of the Will ExPW1/2 shows that it has been stated therein that the portions shown as 'KAI' and 'KHEY' in the site plan have been in possession of Shri Mussaddi Lal since 2025 years from the date of this Will and the portion shown as 'GHEY' is in the possession of Sanwal Singh defendant no.1. However, in para no.5 of plaint as well as para no.4 of affidavit ExPW1/A, it has been asserted that 'apart from the portions shown as 'KAI' and 'KHEY' (in Hindi) in the said site plan, other portions shown as 'GAI' and 'GHEY' (in Hindi) in the said site plan are also in complete, continuous and uninterrupted use and occupation of plaintiffs no.1 to 8 and defendants no.6 & 7 for the last about 45 years'. This apparent contradiction about the fact of possession of portion GHEY raises doubt about the due execution of Will ExPW1/2. Further, when the plaintiff himself is asserting that he is in possession of the portion GHEY, then there is no reason for filing the present suit for possession with respect to the same portion. This also raises doubt about the bonafide of the plaintiff. Even the assumption that the plaintiffs were lateron dispossessed from the portion shown as 'GHEY' (in Hindi) in the said site plan is of no help to the case of the plaintiffs as the date of No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.21/23 dispossession etc has nowhere been stated.
33. It is also pertinent to note that the plaintiff has mentioned in the pleadings that appeal against order dt. 14.02.1978 is pending in Hon'ble High Court but the status of same has not been disclosed till date. The said decision pertains to the validity of Will dt. 12.10.1962 and is very material for the disposal of the present suit.
34. In view of above discussion, it is clear that plaintiffs have failed to prove the Will ExPW1/2. Thus, plaintiff is nether entitled to declaration of ownership nor to the possession of portion shown as 'GHEY' (in Hindi) in the site plan.
35. Plaintiff has also claimed the relief of demolition of unauthorized construction in portion GHEY from first floor to fourth floor. However, in view of finding on validity of Will ExPW1/2, plaintiff has no locus to claim the relief of demolition. Further, apart from affidavits ExPW6/Addl.1, ExPW9/Addl.1 and ExPW10/Addl.1, no evidence has been led by the plaintiff to show the existence of any unauthorized construction. MCD is the best authority to give report about the nature of construction but, for reasons best known to the plaintiff, steps have not been taken for summoning report from MCD. Hence, the plaintiff has failed to prove the existence of unauthorized construction.
36. In view of above discussion, the suit of the plaintiff is No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.22/23 dismissed. No order as to costs. Decree sheet be prepared accordingly. File be consigned to the record room after necessary compliance.
Digitally signedNEHA by NEHA MITTAL Announced in the open MITTAL Date: 2019.11.08 Court on 07.11.19 14:46:04 +0530 (Neha Mittal) Civil Judge10 (Central) THC/Delhi No.95332/16 Laxmi Devi vs. Sanwal Singh Page No.23/23