Delhi District Court
Smt. Lali Devi vs Sh. Harpal on 6 February, 2015
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
RCA No. 99/14
Case I.D. Number : 02402C0240932014
IN THE MATTER OF :
Smt. Lali Devi
W/o Late Sh. Sohan Lal,
R/o H. No. 65, Mata Wali Gali No. 1,
New Chauhanpur,
Delhi110094. ...... Appellant
VERSUS
1. Sh. Harpal
S/o Sh. Baljeet
2. Smt. Sunita
W/o Sh. Harpal
Both R/o Near Itwar Bazar ,
Naseeb Vihar, Near Chauhan Patti ,
U. P. ...... Respondents
Date of Institution of Appeal : 13.08.2014
Arguments heard on : 06.02.2015
Date of Judgment/Order : 06.02.2015
Decision : Appeal dismissed with cost
RCA No.99/14 1 of 16
Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
J U D G M E N T
1. This appeal is directed against the judgment and decree dated 24.07.2014 passed by Ld. JSCC/ASCJ/ Guardian Judge (NE), KKD Courts in CS No. 454/09 whereby the suit filed by the plaintiff/appellant herein against the defendants/respondents for declaration and permanent injunction in respect of property i.e. 1/5th share in Khasra No. 260 situated in the area of Village Sabheypur in the abadi of Sabheypur, Chauhan Patti, Preet Vihar Colony, Illaqua Shahdara Delhi ( hereinafter referred to as the suit property) as shown in in the site plan in red color was dismissed.
The appellant and the respondents shall be referred to as per their ranks in the suit as the plaintiff and defendants respectively.
2. The brief facts as culled from the impugned judgment are as follows: (I) This is a suit for declaration and permanent injunction. By way of present suit plaintiff has sought decree for declaration thereby declaring the plaintiff as owner of ancestral property having 1/5th share in Khasra No. 260, situated in the area of Village Sabheypur, in the abadi of Sabheypur Chauhan Patti, Preet Vihar Colony, Illaqua Shahdara, Delhi as shown in red color in the site plan ( hereinafter referred to as suit property); a decree of declaration thereby declaring the documents i.e. GPA etc. dated 07.10.1997 allegedly executed by husband of plaintiff in favour of Noor Ahmed as null and void; a decree of declaration thereby declaring the documetns i.e. I. G. P. A., RCA No.99/14 2 of 16 Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. Agreement to Sell, Possession Letter, Deed of Will, Receipt, Affidavit in respect of suit property allegedly executed on 12.10.2006 by Noor Ahmad in favour of defendant No. 2 Smt. Sunita as null and void; a decree of permanent injunction thereby restraining the defendant, his agents, servants, associates, attorneys, etc. from dispossessing the plaintiff from the suit property and further restrained them from transferring, selling or creating third party interest over the suit property.
(II) The case of the plaintiff is that plaintiff's deceased husband namely Sh. Sohan Lal was the owner and in possession of ancestral property having 1/5th share in the suit property and he inherited the said property as his name was shown in Khasra Khatoni of the said plot in question. It is alleged that Late Sh. Sohan Lal during his life time had executed a registered Will dated 20.09.2006 in favour of his wife Smt. Lali as she was the only legal heir of his property and after the death of Sh. Sohan Lal on the basis of said Will the property in question was inherited by plaintiff and and she is the exclusive owner and in possession of the said property till date. It is further alleged that on 15.10.2009 defendant No. 1 was trying to take unlawful possession of the said property regarding which the complaint was made to SHO, PS Sonia Vihar. Thereafter, with the intervention of police, the said defendant No. 1 had left the said property in question but again on 19.10.2009 at about 11 PM defendant No. 1 along with his associates tried to take unlawful possession over the property of the plaintiff by making one room and putting tin shed over the said room. It is further alleged that when plaintiff tried to stop him from doing so, then only he RCA No.99/14 3 of 16 Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. had shown the false and fabricated GPA dated 07.10.1997 in favour one Noor Ahmed. It is further alleged that Sh. Sohan Lal had never executed the above said GPA in favour of the Noor Ahmed. Hence, the present suit was filed. (III) Written statement was filed by the defendant wherein it is stated that suit filed by the plaintiff in the present form is not maintainable as the plaintiff has no locus standi to file the present suit. It is further stated that the suit has been filed beyond the period of limitation and the plaintiff has no cause of action to file the present suit. It is further stated that plaint is not maintainable due to nonjoinder of parties, as the plot in question was purchased by defendant No. 2 from one Noor Ahmed and defendant No. 2 is the owner and in possession of the plot. It is further stated that allegations of plaintiff leveled against the defendants are baseless as the plaintiff is also aware that the plot in question in which she is making her false claim was purchased by defendant No. 2 namely Sunita from one Noor Ahmad S/o Sh. Abdul Shaqur on 12.10.2006 vide registered GPA, Possession Letter, Deed of Will, Agreement to Sell, Receipt, Affidavit and the said plot had been purchased by Noor Ahmad from husband of the plaintiff vide registered GPA, Agreement to Sell, Receipt, Will Deed, Affidavit dated 07.10.1997. It is further stated that plaintiff has produced a fabricated Will dated 22.09.2006 in order to grab the plot in question which is still in the possession of the defendant No. 2. It is further stated that plaintiff has violated the principles of " Suppresso Veri", hence plaintiff is not entitled to any relief claimed for the same and suit is liable to be dismissed while imposing exemplary cost as provided under Section 35B on RCA No.99/14 4 of 16 Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. the CPC.
(IV) Replication has been filed on record by the plaintiff to the written statement of the defendants reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement.
3. From the pleadings of the parties, the following issues were framed by Ld. Trial Court vide order dated 07.10.2011:
(i) Whether the suit is within the period of limitation ? OPD
(ii) Whether the suit is bad for nonjoinder of the parties of Noor Ahmad ? OPD
(iii) Whether the suit is hit by the provisions of the Specific Relief Act ? ( OPD)
(iv) Whether the plaintiff is entitled for the relief of declaration as prayed for by the plaintiff in the plaint ? (OPP)
(v) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for by the plaintiff in the plaint ? (OPP)
(vi) Relief.
4. The plaintiff/ appellant has preferred the instant appeal on the ground that the impugned judgment and decree dated 24.07.2014 is not sustainable in law and facts and is passed without applicable of judicial mind; the judgment is illegal and irregular and bad in law. As further contended, the learned trial judge passed the judgment without applying the judicial mind and without considering the evidence and documents on record and reached to the wrong conclusion that plaintiff has not proved the Will dated 20.09.06. It is further RCA No.99/14 5 of 16 Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. mentioned that the defendants did not produce the GPA dated 07.10.97 and failed to prove their right in the suit property and the plaintiff has better title than the defendants. It is further mentioned that appellant want to compare the thumb impression of Sohan Lal from his bank account in account from opening form with the alleged thumb impression in GPA dated 07.10.97 and appellant has filed an application for leading additional evidence U/o 41 Rule 27 CPC. It is further mentioned that Ld. Trial Judge has not applied his mind and disposed off the suit without following process of law and considering the relevant aspects. Hence, this appeal is filed praying to set aside the impugned judgment and decree.
5. The defendants/ respondents filed the reply to the appeal and application U/O 41 Rule 27 and denied the contentions therein. It is argued that the appeal and the application U/o 41 Rule 27 CPC is after thought and without any ground. The respondents further prayed to dismiss the appeal with cost while supporting the impugned judgment and decree.
6. I have heard Ld. Counsel for the parties and considered their respective submissions. I have also gone through the Trial Court records and considered the relevant provisions of law.
7. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of RCA No.99/14 6 of 16 Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
8. Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to RCA No.99/14 7 of 16 Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn.
9. The brief and relevant facts for filing of this suit and issue framed has been mentioned above. Along with the appeal, an application u/o 41 Rule 27 CPC has been filed on behalf of appellant for allowing additional evidence and comparing the thumb impression of deceased Sohan Lal. Nowhere in the application it is mentioned that why the appellant/ plaintiff did not take steps in this regard before Ld. Trial Court. No steps was taken by the appellant nor any such application was filed. The learned counsel for the respondents opposed this application contending that appellant cannot be permitted to lead additional evidence as plaintiff / appellant failed to assign any reason for the same.
RCA No.99/14 8 of 16 Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. The contentions of the learned counsel for appellant in support of this application itself appears to be contrary and appellant failed to assign any reason for not making such request at the relevant stage. Even otherwise there is no reason explained for not taking appropriate steps at the relevant stage. As held in AIR 2001 SC 2802, AIR 2005 P& H 42 and (2001) 7 SCC 503 it is trite to observe that U/o XLI, rule 27 additional evidence could be adduced in one of the three situations, namely, (a) whether the trial court has illegally refused the evidence although it ought to have been permitted;(b) whether the evidence sought to the adduced by the party was not available to it despite the exercise of due diligence;(c) whether additional evidence was necessary in order to enable the Appellate court to pronounce the judgment or any other substantial cause of similar nature. It is equally wellsettled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case.
As further held in AIR 2005 MAD 431, it is not open to any party at the stage of appeal to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirement of order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the appellate stage in order to enable other party to remove certain lacunae present in that case.
10. As held in (2012) 8 SCC 148, the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. Order 41Rule 27 CPC enables appellate court to take additional evidence in exceptional circumstances. The appellate court may RCA No.99/14 9 of 16 Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled as apprised, to the admission of such evidence. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. As further held, the appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of the satisfactory reasons for the non production of the evidence in the trial court, additional evidence should not be admitted in appeal.
11. Keeping in view of aforesaid discussion, this court of the considered opinion that there is no basis for allowing this application u/o 41 Rule 27 CPC filed by appellant. This court does not find any substance and the application is therefore dismissed.
12. The evidence of the parties led before Ld. Trial Court was somehow on the similar lines as contended in the pleadings. The plaintiff has filed this suit for declaration and permanent injunction against the defendants claiming that deceased Sohan Lal was the owner in possession of ancestral property having 1/5th share in the suit property and inherited the same. The plaintiff further claimed that Sohan Lal executed one registered Will dated 20.09.06 in favour of the plaintiff and the plaintiff has filed this suit claiming to be the exclusive owner. The plaintiff has further denied the execution of any GPA dated RCA No.99/14 10 of 16 Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 07.10.97 in favour of one Noor Ahmad from which the defendants claimed to have purchased the suit property. The defendants on the other hand claimed to be owner in possession of the suit property having purchased it from Noor Ahmad on 12.10.06 vide registered GPA, Possession Letter, Will, Agreement to Sell, Receipt, Affidavit. Noor Ahmad purchased the suit property from Sohan Lal vide document dated 07.10.97 as contended. There is no admission of the defendant in the WS regarding the case of the plaintiff and onus to discharge the issues was upon the plaintiff. The Ld. Trial Judge dismissed the suit of the plaintiff as the plaintiff failed to discharge the onus and prove the Will. As noted the plaintiff is seeking the relief of declaration regarding the documents dated 07.10.97 executed in favour of Sh. Noor Ahmad who was not a party to the suit nor was produced as a witness. No steps was taken by the plaintiff to summon or examine him in support of contentions who was a necessary party and the finding of Ld. Trial Judge in this respect appears to be correct. Late Sh. Noor Ahmad was a necessary party for adjudication of the matter herein and decide the real controversy between the parties.
13. There is no dispute between the parties regarding the title of Sohan Lal. The plaintiff has not claimed the relief regarding any specific/apportioned portion and claimed regarding 1/5th share in the ancestral property without seeking the relief of partition. No explanation has been furnished by the plaintiff in this respect. As mentioned, the onus to prove the issues regarding the entitlement of relief of declaration and injunction as prayed in the suit. It is reiterated that the plaintiff claimed her ownership on the basis of Will of RCA No.99/14 11 of 16 Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. Sohan Lal executed in her favour. It is observed that the testimony of the plaintiff was totally shattered during her crossexamination regarding the ascertainment of shares/rights of deceased Sohan Lal in respect of ancestral property. No steps was taken by the plaintiff for cancellation of sale documetns regarding the sale of other portion in the ancestral property. None of the attesting witnesses of the Will on the basis of which the plaintiff has filed this suit have been produced or examined to prove the Will in her favour. As held and rightly relied by the Ld. Trial Court, the Hon'ble Delhi High Court in re Nootan Kumar Vs. Rajesh Arora reported as 2013 (2) AD Delhi 177 held that : " there is no doubt to the proposition that the registration of a Will would not perse dispense with the need or the requirement of the due execution and attestation of the Will which is otherwise required to be proved in accordance with law"
In the case in hand, this court has no hesitation in holding that plaintiff has not taken any steps to summon the relevant witnesses and prove the Will as required in view of the provisions of Section 68 of the Indian Evidence Act. The sole basis of the suit of the plaintiff was the Will executed by deceased Sohan Lal in her favour which is not proved at all. The Ld. Trial Court has therefore rightly dismissed the suit of the plaintiff as the plaintiff has failed to prove her case and discharge the onus. The findings of the Ld. Trial Judge is accordingly sustainable and based on correct appreciation of facts, evidence and pleadings. The findings of the Ld. Trial Judge does not suffer from any RCA No.99/14 12 of 16 Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. infirmity or illegality nor warrants for any interference. The Ld. Trial Judge was correct in dismissing the suit of the plaintiff for declaration and permanent injunction as the plaintiff failed to prove the ownership of the suit property.
14. In this suit the plaintiff has not prayed for any partition and apportionment of the share and merely prayed for declaration of ownership of 1/5th share . The plaintiff failed to explain any reason for not praying for partition and claiming only regarding the ownership of 1/5th share without any partition and apportionment of the share of the parties/LRs. Admittedly, the suit property is ancestral property which is not partitioned and many of the portions have been sold but the plaintiff failed to disclose regarding the same during crossexamination. Neither any revenue record nor concerned official were produced or summoned by the plaintiff to prove the contentions. In fact the plaintiff has done nothing except the bald averments in support of his case. In nut shell, the case of the plaintiff was totally shattered during her cross examination. Mere oral averments by the plaintiff is not sufficient to prove the case. The plaintiff has nothing except denying the right/ title of the defendants and even failed to prove the Will in her favour executed by Sh. Sohan Lal in accordance with the provisions of law. There is no merit or substance in the contention of the plaintiff. The plaintiff is not entitled for the decree of declaration as prayed in the suit.
15. As regards the relief of injunction, the injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial RCA No.99/14 13 of 16 Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. principles and law. It must not be arbitrary, vague and fanciful. Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied. Sub Section (h) of section 41 mention that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust the injunction cannot be granted. Sub Section (i) mention regarding refusal of injunction when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the court. Section 38 of the Specific Relief Act enables the court to grant a perpetual injunction to prevent the breach of an obligation existing in favour of applicant whether express or implied. Meaningly the question is to be examined as to whether there exists an obligation in favour of the applicant and thereafter if the answer is yes, if the case falls within section 41 of the Act, an injunction cannot be granted. It is also necessary to mention that rights and obligation are corollary to each other and the right places a corresponding duty also for its existence.
16. As held in JT 1994 (6) SC 588 , interest of right not shown to be in existence cannot be protected by injunction. Issuance of order of an injunction is absolutely discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41 (j) of the Specific Relief Act, 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence cannot be protected by injunction.
RCA No.99/14 14 of 16 Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. As mentioned, the plaintiff has failed to prove her right, title or interest in the suit property and discharge the onus. The plaintiff is not entitled for the relief of permanent injunction as prayed for.
17. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiff burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to RCA No.99/14 15 of 16 Lali Devi Vs. Harpal & Anr.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
18. The testimony of the PWs, DWs and the pleadings of the parties established that the appellant/ plaintiff failed to prove the case and discharge the onus. The Ld. Trial Court has examined the issues framed in the suit in proper perspective. This court does not find any illegality or infirmity in the impugned judgment and decree dated 24.07.2014 which is well reasoned/correct appreciation of facts and in accordance with the provisions of law. The impugned judgment is therefore entitled to be upheld. There is no merit or substance in the appeal which is liable to be dismissed. The appeal is therefore dismissed with cost.
19. Decree sheet be drawn accordingly.
20. Trial Court record be sent to the concerned court along with copy of this judgment.
21. Appeal file be consigned to record room.
Announced in open Court on this 06th day of February, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
RCA No.99/14 16 of 16 Lali Devi Vs. Harpal & Anr.