Delhi District Court
Shri Sukh Charan Singh vs Smt. Mohinder Kaur on 11 January, 2024
IN THE COURT OF MS. DISHA SINGH, CIVIL JUDGE,
(WEST)-02, TIS HAZARI, DELHI.
SUIT NO.6958/16
CNR NO. DLWT03-000001-1981
IN THE MATTER BETWEEN:
(As per latest amended memo of parties)
1. Sh. Sukh Charan Singh (through LRs)
a). Sh. Narinder Singh
S/o Late Sh. Sukh Charan Singh
b). Sh. Ranjit Singh
S/o Late Sh. Sukh Charan Singh
c). Smt. Sarobjit Kaur
D/o Late Sh. Sukh Charan Singh
All R/o 1243/12, Gali Arorian Hall,
Bazar Amritsar, Punjab
..........................PLAINTIFF
VERSUS
1. Smt. Mohinder Kaur (through LRs)
(Originally defendant no.1)
a). Sh. Om Dutt (died issueless) (originally defendant no.2)
b). Sh. Yog Dutt (through LRs) (originally defendant no.3)
i). Sh. Tarun Dutt
S/o Late Sh. Yog Dutt
C/o Amarson Watch Co.
10-C, Connought Place, New Delhi-110001.
ii). Smt. Sangita Minocha
2
D/o Late Sh. Yog Dutt
R/o 41, Gorakhpur Narbada Road,
Jabalpur, Madhya PradeSh.
iii). Smt. Monica Chadha
D/o Late Sh. Yog Dutt
C-514, Sarita Vihar, New Delhi.
2. Delhi Development Authority
through its Vice Chairman,
Vikas Sadan, INA, New Delhi (originally defendant no. 4)
3. Registrar of Cooperative Societies,
Delhi Govt. Building, Patparganj, New Delhi. (originally
defendant no. 5)
4. E.P.R. Refugee Rehabilitation & House
through its secretary.
Building Co-op. Society Ltd., Greater Enclave-II,
near Wireless Station, New Delhi. (originally defendant no. 6)
5. Sh. Ram Singh (originally defendant no. 7)
S/o Sh. Harnam Singh
R/o Mohalla Berian Gurdaspur, Punjab.
6. Smt. Jasmit Kaur (through LRs) (originally defendant no. 8)
a). Dr. Sarabjit Singh
S/o Late Dr. Hargobind Singh
b). Smt. Preeti Bedi
D/o Late Dr. Hargobind Singh
Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page2/54
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Both R/o 37-B/C, Gandhi Nagar,
Jammu Tawi, Jammu & Kashmir.
7. Sh. Harbax Singh (originally defendant no. 9)
S/o Sh. Chet Singh
R/o Katra Kanya, Kucha Aroria,
Amritsar, Punjab.
8. Sh. Gurbachan Singh (originally defendant no. 10)
S/o Sh. Chet Singh
R/o Katra Kanya, Kucha Aroria,
Amritsar, Punjab.
9. Sh. Kuldeep Singh (originally defendant no. 11)
S/o Late Sh. Tahal Singh
10. Sh. Rajinder Singh (originally defendant no. 12)
S/o Late Sh. Tahal Singh
C/o Jatinder Singh
R/o H.No.99, Type-III, Sector-12,
PGI Campus, Chandigarh-160012.
11. Smt. Amrit (through LRs) (originally defendant no. 13)
D/o Late Sh. Tahal Singh
a). Smt. Dolly K. Chauhan
D/o Late Mrs. Amrit Kaur
R/o Flat No.140, Block-F, Spengle Condos
P.O. Dhakoli, Zirakpur, SAS Nagar, Punjab-160104
b). Sh. S. Manmohan Singh Saxena
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D/o Late Smt. Amrit Kaur
R/o 10, Yarana Street, Ferntree Gully, VIC-3156,
Malbourne, Australia
& also R/o Flat No.140, Block-F, Spengle Condos,
P.O. Dhakoli, Zirakhpur, SAS Nagar, Punjab-160104
12. Smt. Rani (through LRs) (originally defendant no. 15)
D/o Late Sh. Tahal Singh
a). Smt. Preeti Arora
D/o Smt. Rani
R/o 2/56, West Punjabi Bagh, New Delhi.
b). Sh. S. Jagjit Singh
S/o Smt. Rani
R/o H.No.275, Sector-4,
MDC, Panchkula Haryana.
c). Sh. S. Gurmeet Singh
D/o Smt. Rani
R/o 409, Sector-35A, Chandigarh
13. Smt. Bewi (originally defendant no. 16)
D/o Late Sh. Tahal Singh
R/o B-103, Vishnu Chamber Housing Society,
Mahada, Malvani, Malad, West Mumbai-400095
14. Smt. Gurbachan Kaur
D/o Late Sh. Tahal Singh
R/o H.No.5, Shri Krishan Nagar, Patna.
.....................DEFENDANTS
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Suit filed on - 29.05.1981
Judgment reserved on - 23.12.2023
Date of decision - 11.01.2024
SUIT FOR CANCELLATION OF SALE DEED,
DECLARATION, PERMANENT & MANDATORY
INJUNCTION AND POSSESSION
JUDGMENT
By this judgment, this Court shall adjudicate the present suit instituted by the plaintiff seeking the relief of declaration, possession and permanent and mandatory injunctions against the defendant no.1 to 6.
However, before adverting further, it is pertinent to mention at the outset that, the position/numbering of the parties as per the original memo of parties and as per the latest amended memo of parties dated 17.11.2018 filed by the plaintiff, which merely contains the details of the LRs of the parties to this suit as on institution and also as on today, and the same has already been separately mentioned in the memo of parties herein above. That, further the parties in this judgment have been referred as per the numbering as mentioned in the original memo of parties, to avoid any confusion/inconvenience in discussing the pleadings and evidence of the parties.
It is further pertinent to mention that, defendant no. 7 to 16, as per original memo of parties at the institution of this suit, are merely proforma defendants, who as on date as per latest Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page5/54 6 amended memo of parties dated 17.11.2018 are shown as defendant no. 5 to 14, since the original defendant no. 2 and 3, got themselves substituted as LRs of Smt. Mohinder Kaur/defendant no.1. It further pertinent to mention that, defendant no. 7, 9 to 16 as per the original memo of parties stands ex-parte in the present matter Now, before adjudicating upon the issues framed in the present suit, it is necessary to first state the pleadings in the present suit concisely, as follows.
Pleadings of the Plaintiff: -
1. The brief facts of the case as per the amended plaint are that, one Sh. Jit Singh was a member of the East Punjab Railway Refugee Rehabilitation and House Building Co-operative Society Ltd. [hereinafter "the Society" or "defendant no.6"]. He was allotted a piece of land on account of him being a member of the said Society. The plaintiff Sh. Sukh Charan Singh, has filed the present suit claiming himself as the successor of said Sh. Jit Singh.
The plaintiff in the present suit has prayed for the following reliefs: -
a). That a decree for declaration be passed in favour of the plaintiff and against the defendant thereby declaring that the sale deed/lease deed dated 05.03.1975 which was executed favoring the defendant no.1 by defendant no.4 and/or defendant no.6 relating to Plot No.B-16, Block-2, E.P.R. Refugee Rehabilitation and House Building Society and also known as Greater Kailash Enclave-II, New Delhi is illegal, ultra-wires, in effective, bad in law cannot be enforced and in any manner does not confer any Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page6/54 7 leasehold rights or any other right on defendant no.1 or otherwise the same is not binding on the plaintiff and defendants no.7 to 16.
b). That a decree for mandatory injunction be passed thereafter thereby directing the defendant no.4 and/or 6 to execute the proper and requisite sale deed in favour of the plaintiff to the extent of his share i.e. 50% along with either the defendants no.7 to 10 or 11 to 16 having granted the decree for declaration for cancellation of the sale deed favoring defendant no.1.
c). That a decree of possession be passed in favour of the plaintiff against the defendant no.1 to 3 and also be effected against defendants no.4 to 6 while directing therein that the actual and physical possession of the Plot No.B-16, Block-2, E.P.R. Refugee Rehabilitation and House Building Society and also known as Greater Kailash Enclave-II, New Delhi be delivered to the plaintiff to the extent of their share.
d). That a decree of permanent injunction be passed in favour of the plaintiff and against the defendants no.1 to 3 thereby restraining permanently to make any construction or to raise any further construction or otherwise to enter upon any contract or otherwise to transfer the title or in any manner transfer possession except to the plaintiff and defendant no.7 to 10 or 11 to 16 or to raise any construction or to create any encumbrance on the Plot No.B-16, Block-2, E.P.R. Refugee Rehabilitation and House Building Society and also known as Greater Kailash Enclave-II, New Delhi.
e). That a decree of mandatory injunction be passed in favour of the plaintiff and against the defendant no.1 to 3 thereby directing to demolish and remove all sort of construction whatsoever has been raised on their risks and costs.
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2. It has been further averred in the plaint that, Sh. Jit Singh was the member of E.P.R. Refugee Rehabilitation & House Building Co-operative Society Ltd., [the Society/defendant no.6 herein] and was enjoying his membership rights, which entitled him a piece of land as one plot with the said Society. Sh. Jit Singh during his life time had substantial assets such as certain cash deposits with various banks at Amritsar. Sh. Jit Singh expired on 16.12.1969.
3. That it has been further averred in plaint that, Late Sh. Jit Singh died issueless. However, one Smt. Rajinder Kaur was the legally wedded wife of Late Sh. Jit Singh; however, they had strained relations and were living separately at the time of death of Sh. Jit Singh. Further the parents of Late Sh. Jit Singh had pre- deceased him long back. Further, Late Sh. Jit Singh was left behind by Smt. Anant Kaur i.e. sister of Late Sh. Jit Singh, who later on died on 13.04.1975 and by his brother Sh. Tehal Singh, who expired in 1972.
4. It has been further averred in the plaint that, on the death of Sh. Jit Singh, Smt. Anant Kaur, the mother of the plaintiff applied for Succession Certificate of the estate left by Late Sh. Jit Singh, as was in her knowledge at that point of time, i.e., for the amount of Rs.11,087.14 Ps in savings bank account with Punjab National Bank, Chartered Bank and Central Bank at Amritsar. The said petition for the grant of Succession Certificate bearing No.43/1970 was sent for disposal to the Court of Sh. Sukhdev Singh, Ld. Sub-Judge, Ist Class, Amritsar.
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5. That it has been further stated in plaint, during the pendency of the said petition No. 43/70 Smt. Rajinder Kaur came up with the plea that, she happens to be the widow of deceased Sh. Jit Singh and has succeeded to his estate. That, since Smt. Rajinder Kaur was not living with the deceased Sh. Jit Singh, therefore, a bonafide plea was taken by the Smt. Anant Kaur (since deceased) that, Sh. Jit Singh has not left behind any first- class heir. That Smt. Rajinder Kaur came with the plea that being the widow of Sh. Jit Singh, she is the heir of first class ousting everyone else.
6. That it has been further averred that, unfortunately during the pendency of the said petition no.43/70, Smt. Rajinder Kaur also died at Jammu on 27.05.1973. That, during her lifetime she alleged to have executed a Will dated 27.05.1973 in favour of the defendant no.7 to 10 herein, who claims to be the children and brother, out of whom defendant no.7 is the brother of Smt. Rajinder Kaur and defendant no.8 to 10 are the children of the sister of Smt. Rajinder Kaur. That, because of the operation of the Will, the defendant no.7 to 10 applied to be substituted at the place of Smt. Rajinder Kaur as they claimed to have inherited the rights on the basis of the said Will dated 27.05.1973.
7. It is further averred that, when the defendant no.7 to 10 were substituted in the aforesaid petition no.43/70, a compromise was arrived at between Smt. Anant Kaur on the one hand and defendant no.7 to 10 on the other hand, by virtue of which it was decided that, henceforth there will be two sets of heirs i.e. Smt. Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page9/54 10 Anant Kaur on the one hand and defendant no.7 to 10 on the other hand. They agreed that, both the sets would succeed to the estate of the deceased in equal shares.
8. That it has been further stated that, thereafter both the aforesaid sets i.e. Smt. Anant Kaur on the one hand and defendant no.7 to 10 on the other hand jointly applied for the grant of another Succession Certificate in relation to certain amounts of Rs.9,200/- lying with Ram Singh Uppal & Sons, Faridabad; Hargopal and Bros and Sh. Tirlok Singh of Amritsar. The Succession Certificate was granted by the Ld. Subordinate Judge, Amritsar vide order dated 22.01.1976 declaring therein that Smt. Anant Kaur was entitled to receive the aforesaid assets to the extent of 50% and 50% shall be received by the aforesaid defendant No.7 to 10.
9. It has been further averred that, Smt. Anant Kaur and defendant no. 7 to 10 herein thereafter instituted a suit seeking a decree of mandatory injunction against Punjab & Sind Bank, Dehradun while directing to permit the opening of the locker no.25 with the said bank which was in the name of Late Sh. Jit Singh. It is worthwhile to mention that during the pendency of the said suit Smt. Anant Kaur died on 13.04.1975 and since, she during her life time executed a Will dated 09.04.1975 bequeathing all her rights in relation to all assets of deceased Sh. Jit Singh including her rights in regard to the plot in question in favour of the plaintiff, and the plaintiff was substituted at the place of Smt. Anant Kaur on the basis of said Will dated 09.04.1975. Thereafter, two sets were there in the suit i.e. the plaintiff herein on the one Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page10/54 11 hand and the defendant no.7 to 10 on the other hand. The Ld. Subordinate Judge dismissed the suit while appeal was accepted by the Ld. Senior Sub-Judge with vide judgment dated 07.12.1976 settling the rights of the plaintiff and that of defendant no.7 to 10 holding that they are entitled in equal shares.
10. It has been averred by plaintiff that, Sh. Jit Singh became the member of the Society, i.e., defendant no.6 herein. That, being the member of the said Society, he was allotted a Plot No.B-16, Block-2, E.P.R. Refugee Rehabilitation and House Building Society and also known as Greater Kailash Enclave-II, New Delhi [hereinafter "the Suit Property" or "the Suit Plot"] and the same is otherwise bounded as under:
East: Built up house plot No.B.15;
West: Plot No. B-17, South: Service Lane; North: Lane;
11. That it has been further averred that, the Ld. Courts at Amritsar decided that, the plaintiff and the defendant no.7 to 10 are the persons who are entitled to succeed to the estates of the deceased in equal shares, though the defendant no.7 to 10 have been getting their rights on the basis of the Will dated 27.05.1973 executed by the deceased Smt. Rajinder Kaur. It is further averred that, plaintiff no.1 has got his rights on the basis of the Will of Smt. Anant Kaur dated 09.04.1975 being heir of deceased Anant Kaur.
12. In the plaint, the plaintiff has further made an alternative argument to the effect that, he is the sole successor for the reasons Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page11/54 12 that Smt. Anant Kaur on her death left behind the plaintiff and three brothers namely Inder Singh, Manohar Singh, Kulwant Singh and one sister namely Gursharan Kaur, who have given up their rights or right of inheritance, if any in favour of plaintiff and do not claim any interest in the estate of deceased. It has been further averred by the plaintiff that, besides the right which the plaintiff gets on the basis of the Will dated 09.04.1975, the plaintiff succeeds to the deceased Smt. Anant Kaur as the sole heir to succeed to the right in the said plot in aforesaid terms.
13. It has been further averred by plaintiff that, Smt. Anant Kaur was not aware of the entire estate left by the deceased Sh. Jit Singh, as such in a bonafide manner Smt. Anant Kaur was pursuing the assets of the deceased Sh. Jit Singh to the extent of her knowledge; and the fact that, the said plot/suit property was allotted to Sh. Jit Singh during his lifetime was not within the knowledge of Smt. Anant Kaur or plaintiff. It has been further stated that, as soon as Smt. Anant Kaur came to know about the suit property in or about April, 1975, she got served a notice dated 06.04.1975 on the DDA/defendant no.4, the Registrar of Societies/defendant no.5 and the Society/defendant no.6, to transfer the suit property in the name of the heirs of Late Sh. Jit Singh and those at that time, as per the averments of the plaintiff, were Smt. Anant Kaur and defendant no.7 to 10 along with other defendants.
14. It has been further averred that, upon service of the notice, the defendant no.4/DDA replied vide their reply dated 04.07.1975 wherein it was mentioned that, since the said plot/suit property Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page12/54 13 has not been mentioned in the Succession Certificate and as such refused the request of Smt. Anant Kaur to transfer the suit property in her name. It has been further averred by plaintiff that, defendant 4 and 6 were bound to transfer the suit property in the name of Smt. Anant Kaur on the ground of the Succession Certificate as it was prior in time and that, the entitlement of the heirs of the deceased Sh. Jit Singh was settled and the persons who were declared to the heirs were Smt. Anant Kaur and defendant no.7 to 10. It is further stated that the, mother of plaintiff no. 1 i.e. Smt. Anant Kaur unfortunately died on 13.04.1975.
15. It has been further averred that, after the demise of Smt. Anant Kaur, the plaintiff came to know that Smt. Mohinder Kaur i.e., defendant no.1 herein, has colluded with the officials of the defendants no.4 and 6 and got the suit property transferred in her name on the ground that, allegedly her name was mentioned as the nominee of deceased Sh. Jit Singh with the defendant no. 6 i.e., the Society. It has been further stated in plaint that, the defendants no.4 and 6 were approached by defendant no.1 being the nominee to transfer the suit property in her name after the demise of Sh. Jit Singh. It has been further stated by the plaintiff that, she was also represented as/ stated to be the adopted daughter of deceased Jit Singh in the said nomination form.
16. It has been further alternatively averred by the plaintiff in the plaint that, without admitting, even if it is presumed that defendant no.1 was the nominee, even then in law the position of the nominee is to hold the property on behalf of the heirs of Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page13/54 14 deceased and her position is that of a trustee, holding the suit property on behalf of the legal heirs of the deceased Sh. Jit Singh. It has been thus further averred that, as such defendant no.1 cannot have sale/lease deed w.r.t the suit property, executed in her favour.
17. It has been further averred that, thereafter vide letter dated 20.11.1975, the defendant no.4 intimated to the plaintiff that the plot bearing no. B-16 i.e., the suit property has already been transferred and registered in the name of defendant no.1 Smt. Mohinder Kaur, without supplying the relevant documents despite request. It has been further alleged in the plaint that, the act of transfer or execution of the sale deed/lease deed of the suit property in the name of defendant no. 1 or anyone is illegal, ultra vires and without jurisdiction. It has been further averred that, if the said document remains stand in the name of defendant no.1, it would cause serious injuries to the rights of plaintiff.
18. It has been further mentioned in the plaint that, it is only the plaintiff who is entitled to receive the assets of the deceased Sh. Jit Singh to the extent of 50% and rest of the 50% is liable to be inherited by the defendant no.7 to 10 and or otherwise defendant no.11 to 16 and defendant no.1 jointly as defendant no.1 is the daughter of Sh. Tahal Singh (brother of Smt. Anant Kaur and Sh. Jit Singh). It is further averred that, the said defendants did not want to join with plaintiff, as such they were made defendants in the suit. It has been further averred by the plaintiff in the plaint that, hence executing the sale deed/lease deed/conveyance deed favoring defendant no.1 alone is illegal, ultra vires and the same is Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page14/54 15 liable to be cancelled and the same has no force in the eyes of law.
19. That it has been further stated that, the plaintiff not knowing the complications and requirements of different provisions of law had earlier filed a suit bearing no. 56/1977 titled as 'Sukh Charan Singh and Ors. Vs. D.D.A.' seeking the relief of declaration and injunction. It has been further stated that, the said suit was dismissed by the Ld. Subordinate Judge, Delhi vide judgment dated 23.09.1978. It has been further stated that, thereafter the plaintiff along with the defendant no. 7 to 10 acting on the bonafide belief that the suit was maintainable preferred an appeal in RCC No.68/78 in the Court of Ld. Addl. District Judge, Delhi. That, vide judgment dated 28.02.1980, the Ld. Appellate Court came to the conclusion that since the suit was only for seeking the relief of mandatory injunction and declaration i.e., without consequential reliefs and that, the other equal efficacious remedy in law was also available with the plaintiff. That, the Ld. Appellate Court by applying the principles of law as enshrined under Section 34 read with Section 41 of the Specific Relief Act, 1963 came to the conclusion that the suit in that form was not maintainable as such directed for the rejection of the plaint but did not decide the matter on merits. It has been further stated in the plaint that, it is now open to the plaintiff to bring appropriate suit in accordance with law and the plaintiff relies for the same on the judgment of the Ld. Appellate Court to this effect. It has been further stated that, the suit cannot be said to be barred in manner under any provision of law.
20. It has been further averred in the plaint that, in or about Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page15/54 16 middle of December, 1980, the plaintiff found that certain construction was going on/at the suit property and on enquiry it was found that the same was being carried on by one Om Dutt and Yog Dutt i.e. defendant no.2 & 3 probably after having made some illegal transactions with the defendant no.1. That, defendant no.1 to 3 were served with a notice dated 17.12.1980 and they were requested to desist themselves to make any construction. That their acts are illegal and as such plaintiff also served a legal notice upon defendant no.1 to 3 dated 14.05.1980 and thereafter the present suit was instituted.
Pleadings of the Defendants: -
21. That, a joint written statement was filed on behalf of the defendant no. 1 to 3, 12 and 13 denying the allegations as contained in the plaint and wherein, inter alia, it has been further submitted that, the suit of the plaintiff is time barred and is liable to be dismissed; that no notice as required under the DD Act or under Section 90 of the Delhi Co-operative Societies Act, 1972 has been served according to law; that if any suit has to be filed against the DDA, according to DDA Act a notice U/s 53 A is required to be given and unless the notice is given, the suit is not maintainable; that there is no averment in the plaint that no notice was served on the Registrar under the provisions of Section 90 of the Delhi Co-operative Societies Act, 1972; the suit in respect of plot bearing no.B-16, Greater Kailash or B-16 Greater Kailash-II is wholly misconceived and is liable to be dismissed; that defendant no.1 is the sole and absolute owner/lessee of the plot and the super-structure on the said plot, the plaintiff or any other defendant has no locus standi to file the present suit; that the Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page16/54 17 valuation of the suit for the purpose of Court fees and jurisdiction is wrong, thus the plaintiff must pay Court fees on the market value of the plot; that the plaintiff has not paid separate Court fees for the cancellation of the sale deed and the plaintiff must pay ad- valorem Court fees for the relief of cancellation of the Sale Deed at Rs.6 Lakh; that the plaintiff has not fixed the jurisdiction value of the suit for declaration; that the plaintiff has not paid any Court fees for the third mandatory injunction, as claimed. Thus, on these grounds the present suit is liable to be rejected.
22. Written statement was filed on behalf of the defendant no. 4/DDA denying the allegations as contained in the plaint and submitted that, the record of the defendant no.4 shows that Late Sh. Jit Singh, the allottee of the suit property, was shown as the member of the Society defendant no.6. It is been further submitted that a letter was received in the office of defendant no.4 from Smt. Anant Kaur, requesting for the transfer of the suit property in her name as she alleged to be the heir of Late Sh. Jit Singh. It is further submitted that thereafter a reply dated 03.07.1975 was issued by the defendant no.4 to the effect that the Succession Certificate obtained by Smt. Anant Kaur did not make any mention about the suit property or the share held by Late Sh. Jit Singh in defendant no.6 i.e., Society and as such she was not entitled to claim the suit property and the copy of the same letter was also duly endorsed to the defendant no.6 herein. The defendant no.4 has further categorically denied the allegations of collusion with defendant no.1. It is been further averred that the action taken by the defendant no.4 with regard to the transfer of the suit property in the name of Smt. Mohinder Kaur- nominee of Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page17/54 18 Late Sh. Jit Singh, was strictly according to the provisions of the lease deed and by-laws of the defendant no.6 and law relating thereto. It is been further submitted that Smt. Mohinder Kaur/ defendant no.1 had submitted a Succession Certificate to defendant no.4/DDA issued by the Court Sh. Jeevan Das Kapur, Ld. Sub-Judge, First-Class, Delhi on 29.07.1974 relating to transfer of share no. 280 for Rs. 100/- in defendant no.6 Society in pursuance of which the suit property was allotted to Late Sh. Jit Singh and he nominated the Smt. Mohinder Kaur/defendant no.1 as his nominee in his application for membership of the Society in the year 1961. It is been submitted that the action taken by the defendant no.4 was legal in law. It is further averred by the defendant no.4 that their action was lawful after examining the relevant documents submitted by Smt. Mohinder Kaur/defendant no.1 and giving full consideration to the case. It is been further categorically averred by defendant no.4 that in reply to para no. 31 of the plaint that the plaintiff's suit was correctly dismissed by Ld. Sub-Judge.
23. Written statement was filed on behalf of the defendant no.6/ the Society denying the allegations as contained in the plaint and wherein inter alia it has been submitted that as per the records of the East Punjab Railway House Building Co-Operative Society, Late Sh. Jeet Singh being a railway employee was enrolled as a member of the Society on 10.10.1950 and was allotted with the share no. 439 old/ 280 new. It has been further stated that, Late Sh. Jit Singh deposited as sum of Rs.12,200/- with the Society by the end of March,1969, his name was included in the draw of lots for allotment of plots of the Society measuring 500 sq. yards.
Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page18/54 19 That, Late Sh. Jit Singh was allotted by draw of lots the plot No. B-16, Block-2 of the land already leased to the Society i.e., the suit property, on 24.08.1969 in the presence of the representatives of DDA i.e., defendant no. 4 herein and the Registrar Co- operative Societies, Delhi. That, the Society obtained a declaration from its members in respect of their present address, designation, emoluments, father's name, date of birth, name along with father's name and full address of the nominee and the size of the plot. That, vide declaration dated 20.06.1961 and 09.11.1968 Late Sh. Jit Singh had declared Smt. Mohinder Kaur Gulati i.e., defendant no.1 herein (since deceased) as his nominee in respect of his shares/his plot. That, subsequently, Sh. Jit Singh expired on 16.12.1969. it has been further averred by defendant no. 6 that, a letter dated 23.01.1970 was received from Smt. Rajinder Kaur, wife of Late Sh. Jit Singh, wherein defendant no. 6 asked her to submit the death certificate of Late Sh. Jit Singh and the same was received in the end of March,1970. That further, meanwhile an application dated 24.03.1970 was made by Smt. Mohinder Kaur thereby seeking from the Society to transfer the suit property in her favour being a nominee of Late Sh. Jit Singh. That, the said application was forwarded to the DDA/defendant no.4 on 06.05.1970 and they were informed that Smt. Mohinder Kaur was the nominee of Late Sh. Jit Singh, while the wife of Late Sh. Jit Singh was Smt. Rajinder Kaur. That it has been further averred that, since Smt. Mohinder Kaur was the nominee of Late Sh. Jit Singh, the share was transferred in her name however, subject to approval of DDA. That, vide letter no. F-5(11/71-CS) dated 25.02.1975, DDA informed the Society that consequent upon the demise of Sh. Jit Singh, allottee of the plot no. B-16 (II) in the Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page19/54 20 colony of EP Railway Co-operative Housing Society, the name of Smt. Mohinder Kaur adopted daughter of deceased Sh. Jit Singh is substituted in his place, in respect of the suit property by virtue of the Certificate granted by the Court in the name of Smt. Mohinder Kaur. That it is further stated that, vide said letter dated 25.02.1975 the Society was advised to enroll Smt. Mohinder Kaur as the member of Society and take necessary action for the execution of the sub-lease deed in respect of the suit property and Later on the lease deed dated 05.03.1975 was executed in the name of Smt. Mohinder Kaur. That it is further averred by defendant no. 6 that, the action taken by the DDA and the Society of transferring the suit property in favour of Smt. Mohinder Kaur was in accordance with Sub-Section (1) to Section 26 of the Delhi Co-operative Societies Act, 1972. It has been further averred that, the allegations that defendant no. 4 and defendant no. 6 have colluded is baseless. It has been further averred that, the construction on the suit property was already near conclusion and the Society was not aware about who was constructing the suit property as the plan was not sanctioned by the Society. That, this fact was brought to the notice of defendant no. 4 vide letter no. EP/3/280 B-16(II) dated 18.12.1980 and 11.04.1981.
Replication: -
24. Replication was also filed on behalf of the plaintiff to the written statements of the defendants wherein the averments made in the written statement were denied and those made in the plaint were reiterated and reaffirmed.
Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page20/54 21 Issues: -
25. From the pleadings of the parties, following issues were framed in the suit vide order dated 06.08.1984: -
(1) Whether the suit has been properly valued for the purpose of Court fees and jurisdiction and for the relief claimed by the plaintiff? OPD-1 (onus objected to) (2) Whether the present suit is within time? OPD-1 (3) Whether the suit is bad for non-joinder of parties as per the preliminary objection taken by defendant no.1?
OPD (4) Whether the suit is liable to be dismissed for want of notice U/s 53 (A) and (B) and Section 90 of Delhi Co- operative Societies Act and if so to what effect? OPD-1 (5) Whether the plaintiff has a locus standi to file the present suit? If, not to what effect? OPD-1 (onus objected to) (6) Whether defendant no.1 is the adopted daughter and nominee of Jeet Singh? If, so to what effect? OPD-1 (7) Whether the plaintiff is entitled to the relief claimed in the suit? OPP (8) Relief.
Plaintiff Evidence: -
26. In order to prove the case, plaintiff got examined only one witness i.e. Sh. Kulwant Singh Sethi as PW-1, who led his evidence by way of affidavit which is Ex.PA wherein he reiterated the averments made in the plaint. PW-1 also relied upon certain documents which are as under: -
Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page21/54 22 Identification Description Mark Ex. PW-1/1 Power of Attorney (Objected to) Mark-A Copy of Power of Attorney dated 06.02.1981. (Objected to) Ex. PW-1/2A Postal receipt of legal notice 14.05.1980.
(Objected to) Ex. PW-1/2B Postal receipt of legal notice 14.05.1980.
(Objected to) EX. PW-1/2C Postal receipt of legal notice 14.05.1980.
(Objected to) Here it is pertinent to mention that in evidence affidavit of PW-1 by way of Ex.PA, PW-1 had tendered the same in evidence. However, upon oath on 10.08.2005 at the time of his examination- in-chief, PW-1 specifically placed reliance only on the documents that are Ex.PW-1/1, PW-1/2A, Ex.PW-1/2B and PW-1/2C. However, no reliance was placed on document, which is the legal notice dated 14.05.1980 and hence the same cannot be read in evidence.
PW-1 was also cross-examined by Ld. Counsel for defendant no.1 to 3 and DDA at length.
Thereafter, the plaintiff evidence was closed vide order dated 21.09.2005.
Defendant Evidence: -
27. In the present matter, first the DE was led on the ground Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page22/54 23 that onus of issues was upon defendants and same was recorded by a Local Commissioner at the joint request of both sides.
28. In defence evidence, the defendant got examined three witnesses i.e. Sh. P.S. Jain, Asst. Co-operative Society, Department DDA, Vikas Sadan, INA as DW-1; Sh. O.P. Gandhi, Honorary Secretary of EPRR/Rehabilitation and House Building Cooperative Society, Greater Kailash Enclave, Part-I, New Delhi as DW-2 and Sh. Yag Dutt as DW-3.
a). DW-1 Sh. P.S. Jain, Asst. Co-operative Society, Department, DDA brought the summoned record in respect of the plot bearing no. B-16, Greater Kailash Enclave Part-II and submitted that as per record the lease of the plot in question is in the name of Smt. Mohinder Kaur W/o Sh. Harbans Singh Gulati. He exhibited on record the certified copy of the lease deed executed in the name of Smt. Mohinder Kaur as Ex.DW-1/1. It is further submitted by DW-1 that Sh. Jit Singh was the original member of defendant no.6 Society and as per record, Smt. Mohinder Kaur was a nominee of Sh. Jit Singh in respect of plot in question. DW-1 further identified the signature of the then Executive Officer at point X-1 on letter dated 02.12.1972 and exhibited on record the said letter as Ex.DW-1/2. It is further stated that as per record letter dated 23.07.1974 addressed to the Chairman, DDA (Hon'ble Lt. Governor) was received from Smt. Mohinder Kaur and the said letter was received in the office of L.G. on 02.08.1974 vide diary no.12250 as same was forwarded to DDA on 03.08.1974.
DW-1 marked the carbon copy of the same as Mark-D-1. He further exhibited the photocopy of the said letter lying in the office Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page23/54 24 file of the DDA as Ex.DW-1/3. It is further stated that a letter dated 13.09.1974 addressed to the Secretary, DDA was received from the Asst. Registrar (Housing) of the office of Registrar Co- operative Societies, Delhi and exhibited the second original copy of the same as Ex.DW-1/4. The witness further exhibited letter dated 24/25.02.1975 as Ex.DW-1/5 and identified the signature of the then Executive Officer at point X-1.
DW-1 was also cross-examined by the counsel for plaintiff at length.
b). DW-2 Sh. O.P. Gandhi, Honorary Secretary of EPRR/Rehabilitation and House Building Cooperative Society, Greater Kailash Enclave, Part-I, New Delhi brought the summoned record and stated as per record that the original allottee of plot no. B-16, Greater Kailash Enclave, Part-II, New Delhi was Sh. Jeet Singh, vide membership no.280. As per record and as per nomination register of the Society, Sh. Jeet Singh had nominated Smt. Mohinder Kaur W/o Sh. Harbans Singh Gulati as his nominee. It is further stated that the relationship as mentioned in the nomination register is niece (adopted daughter) and the nomination was made on 09.11.1968. DW-2 further stated that as per record, the nomination of Smt. Mahinder Kaur was approved in the meeting of the Executive Committee dated 24.03.1970 and in that meeting the share of Sh. Jeet Singh was approved to be transferred in the name of Smt. Mahinder Kaur. He exhibited on record the true extract of the minutes of the meeting dated 24.03.1970 as Ex.DW-2/1. He further exhibited on record the letter dated 06.05.1970 issued by the then Secretary Sh. Baijnath Mehra to Sh. R.C. Sharma, the then Executive Officer of DDA Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page24/54 25 with a copy to Smt. Mohinder Kaur as Ex.DW-2/2 and identified the signature of Sh. Baijnath Mehra on the same. He further exhibited on record a letter written by Smt. Mohinder Kaur addressed to the Executive Officer, DDA as Ex.DW-2/3. DW-2 further exhibited on record the letter dated 22.01.1973 written by Secretary of the Society to the Executive Officer, DDA as Ex.DW- 2/4 and identified the signature of the then Secretary on the same. DW-2 further exhibited on record copy of the letter dated 22.01.1973 written by the then Secretary to the DDA as Ex.DW- 2/5. DW-2 further exhibited on record letter dated 03-04.07.1975 from DDA ad Ex.DW2/6, letter dated 06.05.1970 written by the Society to the DDA as Ex.DW-2/7 and letter dated 02.12.1972 received by the Society from the DDA as Ex.DW-2/8 and copy of the possession letter dated 03.03.1975 as Ex.DW-2/9. DW-2 was also cross-examined by the counsel for plaintiff at length.
c). DW-3 Sh. Yag Dutt led his evidence by way of affidavit (on behalf of defendant no.2 & 3 as well) which is Ex. D-3. DW-3 was also cross-examined by the counsel for plaintiff at length.
Thereafter DE was closed vide order dated 29.03.2005 and matter was proceeded for plaintiff's evidence. After plaintiff's evidence, the matter was proceeded for final arguments.
Decision with reasons: -
29. The final arguments were heard on behalf of plaintiff, defendant no. 1 to 6 and defendant no. 8, wherein the submissions Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page25/54 26 made in the pleadings of the respective party was relied upon and reiterated. Further, the brief written arguments were also filed on record, on behalf of plaintiff, defendant no. 1 to 6 wherein the averments of their respective pleading were reiterated and hence, not being repeated for the sake of brevity. The record has been carefully perused. Now, this Court shall proceed to give its issue-
wise findings on each issue along with reasons, which are as under: -
30. Issue No. (1) -
(1) Whether the suit has been properly valued for the purpose of Court fees and jurisdiction and for the relief claimed by the plaintiff? OPD-1 (onus objected to) The onus to prove this issue was upon the defendant no.1.
Before proceeding further, the onus of this issue was casted upon defendant no. 1 and same was objected to. However, since this issue arose from the preliminary objections in the written statement of defendant no. 1, hence, the onus of this issue has been rightly cast upon defendant no. 1.
Now, w.r.t. issue no. (1), no evidence has been led on behalf of defendant no. 1. Hence, defendant no. 1 has failed to discharge the onus cast upon her.
Hence, issue no. (1) is decided in favor of the plaintiff and against the defendant no.1.
Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page26/54 27
31. Issue No. (2) -
(2) Whether the present suit is within time? OPD-1 The onus to prove this issue was upon the defendant no.1 However, no evidence has been led on behalf of defendant no. 1. Hence, defendant no. 1 has failed to discharge the onus cast upon her.
Hence, issue no. (1) is decided in favor of the plaintiff and against the defendant no.1.
32. Issue No. (3) -
(3) Whether the suit is bad for non-joinder of parties as per the preliminary objection taken by defendant no.1? OPD The onus to prove this issue was fixed upon all the defendants, even though this issue arose from the preliminary objection taken by defendant no.1 and is, therefore, being decided accordingly.
It is pertinent to mention that, firstly no evidence was led on behalf of defendant no. 1. Further, defendant no. 7 to 16 are merely proforma defendants and no evidence was led on their behalf as well. Further, w.r.t. defendant no. 2 to 6, no categorical evidence has been led on this issue.
Hence, defendants have failed to discharge the onus cast upon them.
Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page27/54 28 Hence, issue no. (3) is decided in favor of the plaintiff and against the defendants.
33. Issue No. (4) -
(4) Whether the suit is liable to be dismissed for want of notice U/s 53 (A) and (B) and Section 90 of Delhi Co-operative Societies Act and if so to what effect? OPD-1 The onus to prove this issue was upon the defendant no.1 on the basis of the preliminary objections raised by defendant no. 1 in her written statement.
However, it is pertinent to mention that, no evidence has been led by defendant no. 1 and therefore, has failed to discharge the onus to prove this issue.
Hence, issue no. (4) is decided in favor of the plaintiff and against the defendant no. 1.
34. Issue No. (5) -
(5) Whether the plaintiff has a locus standi to file the present suit? If, not to what effect? OPD-1 (Onus objected to) The onus to prove this issue was upon the defendant no.1 on the basis of the preliminary objections raised by defendant no. 1 in her written statement. However, defendant no. 1 had objected to the onus. Since this issue arose from the preliminary objections in the written statement of defendant no.1, hence, the onus of this issue has been rightly cast upon defendant no. 1.
Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page28/54 29 However, it is pertinent to mention that, no evidence has been led by defendant no.1 and therefore, has failed to discharge the onus to prove this issue.
Hence, issue no. (5) is decided in favor of the plaintiff and against the defendant no.(1).
35. Issue No. (7) -
(7) Whether the plaintiff is entitled to the relief claimed in the suit? OPP Before giving findings on issue no.6, this Court deems it fit to firstly decide issue no.7.
The onus to prove the present issue no.7 was upon the plaintiff as the general burden of proving the case lies upon the plaintiff as per Section 101 of the Indian Evidence Act, 1872.
Before adverting further to give findings on this issue, it is pertinent to mention that, the plaintiff in their plaint have sought several reliefs which are as follows:
a). That a decree for declaration be passed in favour of the plaintiff and against the defendant thereby declaring that the sale deed/lease deed dated 05.03.1975 which was executed favoring the defendant No.1 by defendant No.4 and/or defendant No.6 relating to Plot No.B-16, Block-2, E.P.R. Refugee Rehabilitation and House Building Society and also known as Greater Kailash Enclave-II, New Delhi is illegal, ultra-wires, in effective, bad in Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page29/54 30 law cannot be enforced and in any manner does not confer any leasehold rights or any other right on defendant no.1 or otherwise the same is not binding on the plaintiff and defendants No.7 to 16.
b). That a decree for mandatory injunction be passed thereafter thereby directing the defendant no.4 and/or 6 to execute the proper and requisite sale deed in favour of the plaintiff to the extent of his share i.e. 50% along with either the defendants no.7 to 10 or 11 to 16 having granted the decree for declaration for cancellation of the sale deed favoring defendant no.1.
c). That a decree of possession be passed in favour of the plaintiff against the defendants no.1 to 3 and also be effected against defendants no.4 to 6 while directing therein that the actual and physical possession of the Plot No.B-16, Block-2, E.P.R. Refugee Rehabilitation and House Building Society and also known as Greater Kailash Enclave-II, New Delhi be delivered to the plaintiff to the extent of their share.
d). That a decree of permanent injunction be passed in favour of the plaintiff and against the defendants no.1 to 3 thereby restraining permanently to make any construction or to raise any further construction or otherwise to enter upon any contract or otherwise to transfer the title or in any manner transfer possession except to the plaintiff and defendant no.7 to 10 or 11 to 16 or to raise any construction or to create any encumbrance on the Plot No.B-16, Block-2, E.P.R. Refugee Rehabilitation and House Building Society and also known as Greater Kailash Enclave-II, New Delhi.
e). That a decree of mandatory injunction be passed in favour of the plaintiff and against the defendant no.1 to 3 thereby directing to demolish and remove all sort of construction whatsoever has Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page30/54 31 been raised on their risks and costs.
Hence, in terms of the issue no. (7) so framed, this Court will give a conjoint finding under this issue no. (7) w.r.t. all the reliefs sought by the plaintiff in the plaint. Further, it is pertinent to mention at this stage that, the position of the parties as per the original memo of parties and as per the latest amended memo of parties dated 17.11.2018 filed by the plaintiff, which merely contains the details of the LRs of the parties who are already parties to this suit on institution and also as on today, has already been separately mentioned in the memo of parties at the beginning of this judgement. That, further the parties in this judgment have been referred as per the original memo of parties.
It is further pertinent to mention that, defendant no. 7 to 16, as per original memo of parties at the institution of this suit, are merely proforma defendants, who as on date as per latest amended memo of parties dated 17.11.2018 are shown as defendant no. 5 to 14, since the original defendant no. 2 and 3, got themselves substituted as LRs of Smt. Mohinder Kaur/defendant no.1. It further pertinent to mention that, defendant no.7, 9 to 16 as per the original memo of parties stands ex-parte in the present matter.
Now, this Court shall proceed further to give its finding on the issue at hand.
The case/claim of the plaintiff is based on the premise that, the Late mother of the plaintiff i.e., Late Smt. Anant Kaur, Late Sh. Jit Singh and Late Sh. Sardar Tahal Singh were siblings. That, after Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page31/54 32 the demise of Sh. Jit Singh on 16.12.1969, Smt. Anant Kaur applied for Succession Certificate in petition no.43/1970 qua the movable assets of Late Sh. Jit Singh i.e., for the amount of Rs.11,087.14 Ps in savings bank account with Punjab National Bank, Chartered Bank and Central Bank at Amritsar, which were in the knowledge of Late Smt. Anant Kaur at that time. The same was granted by the Court of Ld. Sub-Judge, Ist Class, Amritsar on 24.09.1974 w.r.t. above said bank accounts.
Thereafter, Late Smt. Rajinder Kaur, the estranged wife of Late Sh. Jit Singh, filed objections in the said petition no.43/1970 claiming herself to be the sole class first heir of the Late Sh. Jit Singh. However, Smt. Rajinder Kaur expired on 27.05.1973 at Jammu during the pendency of said petition and her LRs. i.e., her brother and children of her sister (defendant no.7 to 10 herein) were substituted, upon whom Late Smt. Rajinder Kaur had bequeathed her entire share in the estate of Late Sh. Jit Singh by virtue of an alleged Will dated 27.05.1973, though not placed on record. Thereafter, a compromise was arrived at between Smt. Anant Kaur (since deceased) and defendant no. 7 to 10 (originally, now Defendant no. 5 to 8 as per amended memo of parties dated 17.11.2018) to the effect that Smt. Anant Kaur will be entitled to fifty percent (50%) share of the assets of Late Sh. Jit Singh qua which the Succession Certificate dated 24.09.1974 was sought, on one hand and defendant no. 7 to 10 herein will be entitled to remaining fifty percent (50%) share of the assets of Late Sh. Jit Singh qua which Succession Certificate dated 24.09.1974 was sought, on the other hand. However, it is pertinent to mention that, the said Succession Certificate dated 24.09.1974 has not been Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page32/54 33 tendered in evidence by the plaintiff or defendant no. 7 to 10 in the instant suit.
It is further the case of the plaintiff side that, Late Smt. Anant Kaur got to know about the suit plot in/about April, 1975, she got served a notice for transfer of the suit plot in her name to defendant no. 4 to 6 (originally, now defendant no. 2 to 4 as per amended memo of parties dated 17.11.2018) on 06.04.1975. Thereafter, Late Smt. Anant Kaur executed a Will dated 09.04.1975 in favour of Sh. Sukh Charan Singh (since deceased, through LRs)/plaintiff no. 1, thereby bequeathing all her share and rights in the estate of Late Sh. Jit Singh, including the suit plot. Thereafter, Late Smt. Anant Kaur expired on 13.04.1975. It is further pertinent to mention that, the said Will dated 09.04.1975 or death certificate of Late Smt. Anant Kaur has not been tendered in evidence by the plaintiff side in the present matter.
It has been further claimed by the plaintiff side that, upon receipt of information of the suit plot by Late Smt. Anant Kaur in/about April, 1975, Late Smt. Anant Kaur served a notice dated 06.04.1975 on defendants no.4 to 6 to transfer the suit property in her name being the legal heir of deceased Sh. Jit Singh along with defendants no.7 to 10 on the strength of the Succession Certificate dated 24.09.1974. That further, vide reply dated 04.07.1975, the DDA/defendant no.4 (originally, now defendant no.2 as per amended memo of parties dated 17.11.2018), declined the request of Late Smt. Anant Kaur on the ground that, the said plot/suit property was not mentioned in the Succession Certificate dated 24.09.1974 as would have been provided to DDA, though not Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page33/54 34 tendered in evidence in the instant matter. It is pertinent to mention that the said notice dated 06.04.1975 and reply dated 04.07.1975 has also not been tendered in evidence by the plaintiff.
That the plaintiff got examined only one witness in order to prove his case i.e., PW-1. PW-1 tendered his evidence by way of affidavit reiterating the contents of plaint and the same was been exhibited as Ex. PA. It is noteworthy to mention herein that PW-1 has only relied upon Ex. PW-1/2A to 2C i.e., the registered AD of service of legal notice dated 14.05.1980 served upon DDA/defendant no. 4. Further the legal notice dated 15.04.1980 was mentioned in evidence affidavit of PW-1, however at the time of tendering the same in examination-in-chief on oath, no reliance has been placed on the said legal notice dated 15.04.1980.
Further, PW-1 relied upon Ex. PW-1/1 i.e., a power of attorney in favour of Sh. Kulwant Singh to depose at the behest of Sh. Sukh Charan Singh/plaintiff, was filed belatedly on the ground that, the original power of attorney dated 06.02.1981 was misplaced by the then Ld. Counsel of the plaintiff. The copy of the power of attorney dated 06.02.1981 was placed on record as Mark-A. Therefore, at the time of tendering of Ex.PW-1/1 was objected to by Ld. Counsel for defendant no. 1 to 3. However, same is a mere technicality and the Court is required to take a liberal and pragmatic view of the practical hardships, therefore, objection does not sustain.
The PW-1 was also cross-examined on behalf by Ld. Counsel for defendant no.1 to 3 (originally, now defendant no.1 as per Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page34/54 35 amended memo of parties dated 17.11.2018), as well as by Ld. Counsel of DDA/defendant no.4. That during cross-examination on behalf of defendant no.1 to 3, PW-1 admitted that, Late Sh. Jit Singh made Smt. Mohinder Kaur/defendant no.1 his nominee by mentioning her as adopted daughter. That, the PW-1 had further admitted during his cross-examination on behalf of defendant no.4/DDA that, the alleged Will of Smt. Anant Kaur dated 09.04.1975 was not probated and further that at the time of execution of said Will the suit property had not been transferred in the name Smt. Anant Kaur.
It is further pertinent to mention that, the plaintiff has not tendered in evidence a single document to bolster their claim that, they have been declared by a competent Court to be the legal heirs of Late Sh. Jit Singh in order to prove their right/title/interest in the suit property. Hence, it is apparent that, the plaintiff has grossly failed in proving the bare averments of their plaint by not tendering any relevant document in evidence. Even if for the sake of arguments, the averment of plaintiff be taken as a gospel truth that, by virtue of Succession Certificate dated 24.09.1974 Late Smt. Anant Kaur and defendant no. 7 to 10 were granted 50% share each in the assets of Late Sh. Jit Singh. However, it is an admitted fact in the plaint that, the said Succession Certificate dated 24.09.1974 was granted only in respect of certain movables and to be precise for the amount of Rs.11,087.14 Ps in savings bank account with Punjab National Bank, Chartered Bank and Central Bank at Amritsar or extension of the said Succession Certificate has not been tendered in evidence, for the reasons best known to the plaintiff. Therefore, upon the reading of the Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page35/54 36 testimony of PW-1, the document tendered in evidence and cross- examination of PW-1, it is evidently clear that no evidence has been led by plaintiff in order to prove his own claim for seeking the relief of declaration, possession and mandatory & permanent injunction.
Furthermore, it is worthwhile to note that, the plaintiff in the present suit has merely sought the relief of declaration of sale deed/lease deed dated 05.03.1975 i.e., Ex.DW-1/1 as null and void. However, no relief of cancellation of Ex.DW-1/1 has been sought by the plaintiff. Further, the plaintiff has also failed to seek the declaration so as to get the Succession Certificated dated 23.07.1974 be declared as null and void along with Cancellation of the said Succession Certificate dated 23.07.1974, which was granted by the Ld. Sub-Jude, Ist Class, Delhi in favour of Smt. Mohinder Kaur/defendant no.1, thereby empowering her to collect the debts and securities of Late Sh. Jit Singh w.r.t. Share no. 280 lying with the E.P. Railway Refugee Rehabilitation and House Building Co-operative Society/ defendant no.6 (originally, now defendant no.4 as per amended memo of parties dated 17.11.2018). Further, the lease deed dated 05.03.1975 was executed by DDA/defendant no.4 and the Society/defendant no.6 in favour of Smt. Mohinder Kaur/ defendant no.1 on the strength of the Succession Certificate dated 23.07.1974 qua the shares in defendant no.6 held by Late Sh. Jit Singh, on the basis of which Late Sh. Jit Singh was originally allotted the suit plot and same is an admitted fact as per the plaint itself. Further, the execution of lease deed dated 05.07.1975 i.e., Ex. DW-1/1 in the name of defendant no. 1 was made by defendant no.6 on the basis of the Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page36/54 37 nomination made by Late Sh. Jit Singh on 09.11.1968, wherein Late Sh. Jit Singh in the column of nominee mentioned the name of Smt. Mohinder Kaur/defendant no. 1 as his 'nominee' in the capacity of being his 'niece (adopted daughter)'.
In order to prove this fact, DW-2, Honorary Secretary of the Society/defendant no.6, was summoned as a witness. DW-2 categorically testified on oath during his examination-in-chief, showed the nomination register and stated under oath that, according to the nomination register brought by him Late Sh. Jit Singh had nominated Smt. Mohinder Kaur/defendant no.1, as his 'nominee' and had mentioned his relation with Smt. Anant Kaur/defendant no.1 as his 'niece (adopted daughter)'. That, it was further testified by DW-2 that the said register was maintained regularly and in the course of the working of the Society i.e., defendant no. 6 and which also contains the nomination forms of other allottee members of the Society.
It is further pertinent to mention that, DW-2 has also tendered in evidence Ex. DW-2/1 to Ex. DW-2/8, wherein Ex. DW-2/1 is the extracts of minutes of meetings, Ex.DW-2/3 is the letter written by Smt. Mohinder Kaur/defendant no.1 to DDA/defendant no.4 for execution of lease deed of suit property in her name, Ex.DW- 2/2 and Ex.DW-2/8 are the official communication letters between DDA/defendant no.4 and the Society/defendant no.6 reflecting the entire process and facts taken into consideration by DDA/defendant no.4 and the Society/defendant no.6 in executing the lease deed date 05.03.1975 in favor of Smt. Mohinder Kaur/defendant no.1 and further tendered in evidence Ex. DW-2/9 Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page37/54 38 i.e., the possession letter dated 03.03.1975 whereby actual possession of the suit property was taken over by Smt. Mohinder Kaur/defendant no.1. It has been further testified by the DW-2 that, these documents were maintained in ordinary course of the working of the Society/defendant no.6.
It is pertinent to mention that the testimony of DW-2 inspires the confidence of this Court since, the documents tendered by the DW-2 and the entries mentioned therein could not be controverted by plaintiff side. Further, since DW-2 has testified on oath that these documents and entries were maintained in ordinary course of working hence, there lies a presumption in favor of existence of facts testified by DW-2, since the nomination register and the entries therein were maintained in the ordinary course of working of the Society/defendant no.6 in terms of section 114 of the Indian Evidence Act, 1872, which reads as under:
"114. Court may presume existence of certain acts - The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
Therefore, it can be presumed that, the entries in the nomination register as testified by DW-2 and shown to the Court along with documents i.e., Ex. DW-2/1 to Ex. DW-2/9, are correct and stands proved. Further, nor the said documents nor the entries in the nomination register were challenged by the plaintiff side during Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page38/54 39 cross-examination or by leading any rebuttal evidence.
Further, DW-1 summoned from the office of the DDA/defendant no.4 along with the relevant record pertaining to the suit property. The DW-1 had tendered in evidence the original lease deed 05.03.1975 as Ex. DW-1/1(OSR). DW-1 further tendered in evidence Ex. DW-1/2 i.e., a letter dated 02.12.1972 sent by DDA/defendant no.4 to the Society/defendant no.6 calling for the documents submitted by Smt. Mohinder Kaur/defendant no.1 to the Society/defendant no.6 for execution of the lease deed dated 05.03.1975 w.r.t the suit property in favor of Smt. Mohinder Kaur/defendant no.1. Further DW-1 has tendered in his evidence a letter from defendant no.1 to DDA/defendant no.4 and the Society/defendant no.6 dated 23.07.1974 as Ex. DW-1/3 wherein Smt. Mohinder Kaur/defendant no.1 has supported her claim for execution of lease deed of suit property in her name by submitting the certified copy of the Succession Certificate dated 23.07.1974 issued by the Court of Ld. Sub-Judge, First Class, Delhi in Succession petition no. 558/1973 w.r.t share no. 280 in belonging to Late Sh. Jit Singh with defendant no.6 of the face value of Rs. 100/- along with the certified copy of the public notification issued by the Ld. Sub-Judge, First Class, Delhi in Succession Petition no. 558/1973, filed by Smt. Mohinder Kaur/defendant no.1 w.r.t shares standing in the name of Late Sh. Jit Singh with the Society/defendant no.6 to the public at large dated 27.10.1973. DW-1 has further tendered in evidence Ex. DW-1/4 which is a letter dated 13.09.1974 issued by the Registrar of Societies/defendant no.5 (originally, defendant no.3 as per amended memo of parties dated 17.11.2018) to the DDA/ Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page39/54 40 defendant no.4/ for communicating the order received from Lt. Governor w.r.t taking necessary action on the letter of Smt. Mohinder Kaur/defendant no.1 dated 23.07.1974 for executing the lease deed of the suit property in her favor on the basis of the said Succession Certificate dated 23.07.1974. Further DW-1 tendered in evidence Ex. DW-1/5 i.e., a letter dated 24.02.1975 issued by DDA/defendant no.4 to Smt. Mohinder Kaur/defendant no.1 communicating that, by virtue of the Succession Certificate dated 23.07.1974 i.e., Ex.DW-1/3, the name of the Smt. Mohinder Kaur/defendant no.1, adopted daughter of Sh. Jit Singh is substituted in his place w.r.t the suit property and the Society/defendant no.6 was advised to enroll the name of Smt. Mohinder Kaur/defendant no.1 as a member of the Society and take necessary action for execution of sub-lease deed in her favor. That, DW-1 was cross-examined by plaintiff side. That, DW-1 claimed to have no personal knowledge of these documents. However, the testimony and the documents tendered by DW-1 could not be controverted by plaintiff.
Further, defence evidence was also led on behalf of Sh. Om Dutt/ defendant no. 2 and Sh. Yog Dutt/defendant no.3 by way of a joint evidence affidavit of DW-3 to testify on behalf of defendant no.2 and 3 both. DW-3 reiterated the stand taken by defendant no. 2 and 3 in their joint written statement filed along with with defendant no. 1, 12 and 13. Further, DW-3 relied upon the Succession Certificate issued in favour of Smt. Mohinder Kaur/defendant no. 1 in Succession Petition no. 558/1973 dated 23.07.1974 and exhibited the same as Ex. DW-3/1. Further, DW- 3 has also placed reliance upon all the documents tendered in Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page40/54 41 evidence by DW-1 i.e., Ex.DW-1/1 to Ex. DW-1/5 and DW-2 i.e., Ex. DW-2/1 to Ex. DW-2/9. It is pertinent to mention that DW-3 was cross-examined by the Ld. Counsel for plaintiff. However, on the bare reading of the cross-examination of DW-3 it transpires that, DW-3 reiterated the stand taken by defendant no.2 and defendant no.3 in their written statement filed along with defendant no.1, 12 and 13 and that no contradiction could be brought out by the plaintiff side in the testimony of the DW-3. DW-3 further categorically stated that, they were informed that Smt. Mohinder Kaur/defendant no.1 was adopted daughter of Late Sh. Jit Singh at the time of betrothal ceremony of Smt. Mohinder Kaur/defendant no.1 with their Uncle. This court is of the opinion that, the testimony of DW-3 inspires confidence.
At this stage, it is further pertinent to discuss that, the plaintiff in his plaint has challenged the fact of adoption of Smt. Mohinder Kaur/defendant no.1 (since deceased, through LRs) by Late Sh. Jit Singh. It is further pertinent to mention that, the suit property was executed in the name of Smt. Mohinder Kaur/defendant no.1 vide lease deed dated 05.03.1975 i.e. Ex.DW-1/1(OSR) on the strength of the application and nomination form filed by Late Sh. Jit Singh at the time of applying for the allotment of the suit property on 09.11.1968, as proved by the testimony of DW-2 and documentary evidence tendered by DW-2 coupled with the fact of grant of Succession Certificate dated 23.07.1974 i.e. Ex. DW-1/3 and Ex. DW-3/1, in the name of Smt. Mohinder Kaur/defendant no.1 w.r.t the membership of the shares of Late Sh. Jit Singh with the Society/defendant no.6 on the basis of which Late Sh. Jit Singh was originally allotted the suit plot by the Society/ Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page41/54 42 defendant no.6. The fact that, Late Sh. Jit Singh had mentioned the name of Smt. Mohinder Kaur/defendant no.1 as his 'nominee' in the capacity of being his 'niece (adopted daughter)' at the time of applying for the suit property on 09.11.1968 coupled with the testimony of DW-2 who had brought the original nomination register of the Society and had further categorically testified on oath that, "(...) As per record, Sh. Jit Singh had nominated Smt. Mohinder Kaur w/o Sh. Harbans Singh Gulati as his nominee. His relationship as mentioned in the nomination register is niece (adopted daughter) and the nomination was made on 09.011.1968. The record which I have brought is maintained regularly in the course of the working of the Society and which also contains all the nomination forms of other allottee members of the Society."
In this regard, it is pertinent to discuss the provision under Clause (5) to Section 32 of the Indian Evidence Act, 1872, which reads as under:
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. -- Statements, written or verbal, of rel- evant facts made by a person who is dead, or who cannot be found, or who has become inca- pable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:
--
Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page42/54 43 (xxx)
5. or relates to existence of relationship. --
When the statement relates to the existence of any relationship [by blood, marriage or adop- tion] between persons as to whose relationship [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
Illustrations:
(xxx)
(k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact."
[Emphasis Supplied] A bare reading of the above said provision fortifies the fact that, once a statement, whether written or verbal, has been made by a person w.r.t existence of any relationship by blood, marriage or adoption, between persons as to whose relationship by blood, marriage or adoption, the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. In the facts of the present matter, such a statement was made in writing by Late Sh. Jit Singh at the time of filling the nomination form on 09.11.1968 wherein he mentioned the name of Smt. Mohinder Kaur/ defendant no. 1 as his 'nominee' being his 'niece (adopted daughter)'. Further, this statement was made by Late Sh. Jit Singh prior to dispute arose between the parties hereto and thereafter Sh. Jit Singh expired on Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page43/54 44 16.12.1969. Hence, it becomes a relevant fact in the light of the above-said provision and also have the presumption of existence of these entries and statement existing in the nomination register maintained by the Society/defendant no.6 in the ordinary course of their working as per Section 114 of the Indian Evidence Act,1872, as already discussed herein above and not being repeated for brevity.
It is further pertinent to mention that, the plaintiff instituted the present suit seeking declaration of lease deed dated 05.03.1975 i.e.,Ex.DW-1/1 as null, void and not binding on plaintiff and defendant no. 7 to 16; possession of suit property in favour of plaintiff to the extent of 50%; mandatory injunction against defendant no. 4 and 6 to execute a valid lease deed in favour of plaintiff and defendant no. 7 to 10 or 11 to 16; permanent injunction & mandatory injunction against defendant no. 1 to 3 to stop the construction at suit property, demolish the construction so made and not to alienate the suit property to anyone except plaintiff, solely on the contentions raised in the plaint on the basis of Succession Certificate dated 24.09.1974 along with extension of certificate dated 22.01.1975 passed by the Court of Ld. Sub- Judge, Amritsar, thereby believing themselves to be the legal heirs of Late Sh. Jit Singh in view of the above said Succession Certificate and extension certificate, which has not even been tendered in evidence by plaintiff, without having any letters of administration to that effect in his favour.
Moreover, it is further worthwhile to mention that the abovesaid Succession Certificate dated 24.09.1974 along with extension of Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page44/54 45 certificate dated 22.01.1975 passed by the Court of Ld. Sub- Judge, Amritsar, has not been tendered in evidence by the plaintiff to prove his own case. Resultantly, an adverse inference can be drawn from the said fact under Section 114 of the Indian Evidence Act,1872 read with illustration (g) that, the plaintiff himself knew that the said document will go against the case of the plaintiff, as the said document, admittedly as per the contents of plaint, does not find any mentioning of the share no. 280 of Late Sh. Jit Singh with the Society/defendant no.6. Section 114 of the Indian Evidence Act,1872 read with illustration (g), reads as under:
"114. Court may presume existence of certain acts - The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations:
The Court may presume--
(xxx)
(g) That evidence which could be and is not produced would, if produced, be unfavorable to the person withholds it.
(xxx)"
[Emphasis Supplied] It is further the settled law under Section 34 of the Specific Relief Act,1963, that, while claiming the relief of declaration, Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page45/54 46 consequential reliefs must also be sought in order to be able to pass an executable decree. Here it is further pertinent to mention that though in plaint the plaintiff has mentioned for the relief of cancellation of lease deed dated 05.03.1975, however, no such relief has been prayed for in the prayer clause nor the said relief has been valued for the purpose of jurisdiction nor any Court fees has been affixed on the same and, therefore, the said relief cannot be considered to have been claimed by the plaintiff. The plaintiff has further failed to seek declaration and cancellation of the Succession Certificate issued to Smt. Mohinder Kaur/defendant no.1 dated 23.07.1974 on the basis of which the suit property was executed in name of defendant no.1 by defendant no.4. Further, the plaintiff has failed to seek the relief of declaration to be declared as the legal heir of Late Sh. Jit Singh along with partition by metes and bounds in order to determine the share of all the legal heirs of Late Sh. Jit Singh and to pass and effective decree of possession.
In view of the above said discussion the point of facts, law and evidences tendered, the plaintiff has evidently failed in discharging his burden of proving the case on the scale of preponderance of probabilities. In this regard, Section 101 of the Indian Evidence Act, 1872 provides that one, who seeks a judgment in his favour on the basis of certain facts, such a person must prove the existence of such facts, which in a civil suit happens to be the plaintiff upon whom the general burden of proving his case lies. Further, Section 101 of the Indian Evidence Act, 1872 reads as follows:
"101. Burden of proof- Whoever desires any Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page46/54 47 Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustrations:
(xxx)
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true.
A must prove the existence of those facts."
[Emphasis Supplied] This Court is fortified by a recent landmark judgement pronounced by the Ld. Division Bench of the Hon'ble Supreme Court of India in the case of Smriti Debbarma (Dead) Through Legal Representative Vs. Prabha Ranjan Debbarma & Ors. [Civil Appeal no. 878/2009, decided on 04.01.2023] wherein the Hon'ble Apex Court has categorically held that, the defendants, being in possession, would be entitled to protect and save their possession, unless the person who seeks to dispossess them has a better legal right in the form of ownership or entitlement to Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page47/54 48 possession; the onus to prove which lies upon the plaintiff. The relevant paragraphs in the case of Smiriti Debbarama (supra) are reproduced hereunder:
"30. In the above factual background, for the plaintiff to succeed, she has to establish that she has a legal title to the Schedule 'A' property, and consequently, is entitled to a decree of possession. The defendants cannot be dispossessed unless the plaintiff has established a better title and rights over the Schedule 'A' property. A person in possession of land in the assumed character as the owner, and exercising peaceably the ordinary rights of ownership, has a legal right against the entire world except the rightful owner. A decree of possession cannot be passed in favour of the plaintiff on the ground that defendant nos. 1 to 12 have not been able to fully establish their right, title and interest in the Schedule 'A' property. The defendants, being in possession, would be entitled to protect and save their possession, unless the person who seeks to dispossess them has a better legal right in the form of ownership or entitlement to possession.
31. The burden of proof to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief. This is Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page48/54 49 mandated in terms of Section 101 of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions, but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit. The plaintiff could have succeeded in respect of the Schedule 'A' property if she had discharged the burden to prove the title to the Schedule 'A' property which squarely falls on her. This would be the true effect of Sections 101 and 102 of the Evidence Act. Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed.
Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page49/54 50 Thus, the impugned judgment by the High Court had rightly allowed the appeal and set aside the judgment and decree of the trial Court. We, therefore, uphold the findings of the High Court that the suit should be dismissed. We clarify that we have not interfered or set aside any observations of the High Court in re the Tripura Land Revenue and Land Reforms Act, or defendants' claim etc. Notably, M/s. Hotel Khosh Mahal Limited is not a party to the present proceedings.
32. In view of the aforesaid discussion and legal position, the present appeal must be dismissed. We order accordingly. In the facts of the case, there will be no order as to costs."
[Emphasis Supplied] In the instant matter as well, the plaintiff has grossly failed in discharging the burden to prove his own case by tendering evidence in support of the averments/contentions/claims raised by the plaintiff in his own plaint.
Hence, in light of the above issue no. (7) is decided against the plaintiff and defendant no. 7 to 16 (being proforma defendants) and in favour of the defendant no. 1 to 6.
36. Issue No. (6) -
(6) Whether defendant no.1 is the adopted daughter and Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page50/54 51 nominee of Jeet Singh? If, so to what effect? OPD-1 The onus to prove this issue was upon the defendant no.1.
Before adverting further, it is pertinent to mention that, the plaintiff in his plaint has challenged the fact of adoption of Smt. Mohinder Kaur/defendant no.1 (since deceased, through LRs) by Late Sh. Jit Singh. It is further pertinent to mention that, the suit property was executed in the name of Smt. Mohinder Kaur/ defendant no.1 vide lease deed dated 05.03.1975 i.e., Ex.DW-1/1 (OSR) on the strength of the application and nomination form filed by Late Sh. Jit Singh at the time of applying for the allotment of the suit property on 09.11.1968, as proved by the testimony of DW-2 and documentary evidence tendered by DW-2 coupled with the fact of grant of Succession Certificate dated 23.07.1974 i.e., Ex. DW-1/3 and Ex. DW-3/1, in the name of Smt. Mohinder Kaur/defendant no.1 w.r.t the membership of the shares of Late Sh. Jit Singh with the Society/defendant no.6 on the basis of which Late Sh. Jit Singh was originally allotted the suit plot by the Society/ defendant no.6. The fact that, Late Sh. Jit Singh had mentioned the name of Smt. Mohinder Kaur/defendant no.1 as his 'nominee' in the capacity of being his 'niece (adopted daughter)' at the time of applying for the suit property on 09.11.1968 coupled with the testimony of DW-2 who had brought the original nomination register of the Society and had further categorically testified on oath that, "(...) As per record, Sh. Jit Singh had nominated Smt. Mohinder Kaur w/o Sh. Harbans Singh Gulati as his nominee. His relationship as mentioned in the nomination register is niece (adopted daughter) and the nomination was Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page51/54 52 made on 09.011.1968. The record which I have brought is maintained regularly in the course of the working of the Society and which also contains all the nomination forms of other allottee members of the Society."
In this regard, it is pertinent to discuss the provision under Clause (5) to Section 32 of the Indian Evidence Act, 1872, which reads as under:
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. -- Statements, written or verbal, of rel- evant facts made by a person who is dead, or who cannot be found, or who has become inca- pable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:
--
(xxx)
5. or relates to existence of relationship. --
When the statement relates to the existence of any relationship [by blood, marriage or adop- tion] between persons as to whose relation-
ship [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
Illustrations:
Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page52/54 53 (xxx)
(k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact."
[Emphasis Supplied] A bare reading of the abovesaid provision fortifies the fact that, once a statement, whether written or verbal, has been made by a person w.r.t existence of any relationship by blood, marriage or adoption, between persons as to whose relationship by blood, marriage or adoption, the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. In the facts of the present matter, such a statement was made in writing by Late Sh. Jit Singh at the time of filling the nomination form on 09.11.1968 wherein he mentioned the name of Smt. Mohinder Kaur/ defendant no. 1 as his 'nominee' being his 'niece (adopted daughter)'. Further, this statement was made by Late Sh. Jit Singh prior to dispute arose between the parties hereto and thereafter Sh. Jit Singh expired on 16.12.1969. Hence, it becomes a relevant fact in the light of the above-said provision and also have the presumption of existence of these entries and statement existing in the nomination register maintained by the Society/defendant no.6 in the ordinary course of their working as per Section 114 of the Indian Evidence Act,1872, as already discussed herein above and not being repeated for brevity.
Further regard may be had to the findings arrived at w.r.t issue no. (7), being not reproduced herein for the sake of brevity.
Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page53/54 54 Hence, in view of the findings with respect to issue no. (7) & (6), the present issue no.(6) is decided in favor of the defendant no.1 and against the plaintiff.
37. Issue no.(8) -
(8) Relief - In view of the findings given on issues no. (1) to (7), documents placed on record, pleadings of the parties and evidence led by the parties, the suit of the plaintiff is hereby dismissed.
Parties to bear their own cost.
Let, decree sheet be prepared accordingly.
File be consigned to record room after completing the necessary formalities. Digitally signed DISHA by DISHA SINGH SINGH Date: 2024.01.12 16:56:05 +0530 (This judgment contains 54 pages and each (DISHA SINGH) page has been signed by the undersigned) Civil Judge-02, West, Tis Hazari Courts, Delhi Announced in the open Court on 11.01.2024 Suit No.6958/2016 Sukh Charan Singh Vs. Mohinder Kaur Page54/54