Delhi District Court
Smt. Ram Kali Devi (Deceased) ... vs Union Of India & Ors. Page 1 / 27 on 4 October, 2021
IN THE COURT OF SH. DEEPAK KUMAR-I,
COMMERCIAL CIVIL JUDGE (WEST), TIS HAZARI COURTS,
DELHI.
C.S. No. 607519/2016
CNR NO. DLWT03-000003-1984
1. Smt. Ram Kali Devi (Deceased) (Proceedings against
Through her LRs:- plaintiff no. 1 were
abated vide order dated
17.09.2004).
a. Sh. Sri Ram Anand
S/o Sh. Wazir Chand
b. Smt. Ram Murti
D/o Shri Wazir Chand
Both R/o 1173, Dr. Mukherjee Nagar,
Delhi-110009.
c. Smt. Ram Pyari Kohli
W/o Sh. H.R. Kohli
R/o 382, Dr. Mukherjee Nagar,
Delhi-110009.
d. Smt. Ram Kumari
W/o Sh. Mohan Lal
R/o 1260, Dr. Mukherjee Nagar,
Delhi-110009.
2. Smt. Ram Japo Devi (Deceased)
Through her LRs:-
a. Rajinder Singh S/o Smt. Ram Japo Devi
W/o Late Hargobind Singh,
R/o 476/5, Rajender Nagar, Railway Road,
Jind, Haryana.
b. Smt. Raj Kaur
W/o Late Ujagar Singh
c. Smt. Harbhajan Kaur
CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 1 / 27
W/o Late Inder Singh
d. Smt. Prakash Kaur
W/o Sh. Man Singh
e. Smt. Kamaljit Kaur
W/o Sh. Charanjit Singh
f. Smt. Gurmeet Kaur
W/o Sh. Praveen Kumar
g. Smt. Kuljeet Kaur
W/o Sh. Prem Singh Sodhi
All Daughters of Late Smt. Ram Japo Devi
C/o Rajinder Singh
S/o Late Hargobind Singh,
R/o 476/5, Rajender Nagar,
Railway Road, Jind, Haryana.
3. Shri Sarup Singh (Deceased) (proceedings against plaintiff
Through his LRs:- no. 3 were abated vide order
dated 30.01.2008).
a. Shri Surjeet Singh
S/o Late Sarup Singh
b. Smt. Lalita
D/o Late Sarup Singh
Both R/o A-1, Sindhora Kalan,
DDA Flats, New Delhi-110052.
4. Sh. Sohan Singh Kakkar (Deceased)
Through his LRs:-
a. Sh. Kuldeep Singh
b. Sh. Harjeet Singh
c. Sh. Gurmeet Singh
All S/o Late Sohan Singh Kakkar
R/o B-4/89, Sector-18,
Rohini, Delhi-110085.
CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 2 / 27
d. Smt. Ravinder Kaur
W/o Sh. Gurmeet Singh
D/o Late Sohan Singh Kakkar,
R/o A-3/117, Sector-7,
Rohini, Delhi.
5. Sh. Chattar Singh (Deceased)
Through his LRs:-
a. Sh. Girish Kakkar
b. Sh. Praveen Kakkar
Both sons of Late Chattar Singh
R/o G-39, Rishi Nagar,
Ujjain, Madhya Pradesh.
c. Smt. Kamlesh
W/o Sh. Ramesh Gandhi.
d. Smt. Babli
W/o Sh. Rajesh Juneja
e. Smt. Sudesh
W/o Sh. Vinod Chopra
All daughters of Sh. Chattar Singh
C/o Sh. Girish Kakkar
G-39, Rishi Nagar,
Ujjain, Madhya Pradesh.
....Plaintiffs
VERSUS
1. The Union of India
Through the Land & Development Officer,
Ministry of Works & Housing
Nirman Bhawan, New Delhi.
2. The Union of India
Through the Secretary,
Ministry of Works & Housing
Nirman Bhawan, New Delhi.
3. The Delhi Development Authority
Through its Vice Chairman,
CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 3 / 27
INA, Vikas Sadan, New Delhi.
4. Shri Raj Rishi Vaish (Deceased)
Through his LRs:-
a. Smt. Hansa Vaish
W/o Late Sh. R.R. Vaish
R/o Palma Road, Lal Louise
Quartre Brones Mauritious
b. Sh. Harmont Kumar
S/o Late Sh. R.R. Vaish
R/o House No. 134, Ashok Enclave,
Phase-III, Sector-35,
Saroj Khawaja, Faridabad,
Haryana.
c. Ms. Rekha D/o Late Sh. R.R. Vaish
R/o Palma Road, Lal Louise
Quartre Brones, Mauritious.
.... Defendants
Date of Filing : 30.01.1984
Date of Judgment : 04.10.2021
JUDGMENT
1. Briefly stated facts of the case are that the plaintiffs are the only surviving natural/legal heirs who are in possession of property bearing No. E-60, Hudson Lines, Kingsway Camp, Delhi-9 after the death of Smt. Pappo Devi, mother of plaintiffs on the basis of a Will dated 12.04.1969 left by Smt. Pappo Devi, W/o Sh. Arjan Singh Kakkar @ Arjan Dass.
It is further averred by the plaintiff that the property bearing H.No. E-60, Hudson Lines, Kingsway Camp, Delhi-9 was allotted by defendants Nos. 1 & 2 in 1949 in the joint name of the said Smt. Pappo Devi, as head of the family and her three sons viz. Sh. Chattar Singh, Sh. Swarup Singh and Sh. Sohan Singh, vide CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 4 / 27 allotment card dated 08.09.1949 issued by the Accommodation Officer of defendant no.2. That the testator/deceased Smt. Pappo Devi died on the 13th April, 1969 at E-60, Hudson Lines, Kingsway Camp, Delhi-9 and Sh. Hira Singh, another son of the testator/deceased died issueless on 20.07.1977. He was a bachelor.
It is further averred by the plaintiff that one Sh. Raj Rishi Vaish, defendant no.4 filed a petition for eviction against plaintiff No.3 and his wife Smt. Shanti Devi, in which defendant no.4 has alleged that he is the owner of H.No. E-60, Hudson Lines, Kingsway Camp, Delhi-9, who relied upon a forged 'Will' alleged to have been executed by Smt. Pappo Devi, in his favour on the ground that she adopted defendant no.4 as her son. That the alleged Will is a fabricated document. That in the said eviction petition, witness of defendant no. 1 was called and during his statement it was transpired that the defendant no. 1 and 2 had done mutation/substitution in respect of H.No. E-60, Hudson Lines, Kingsway Camp, Delhi-9 and transferred the same in the name of the defendant no.4.
It is also averred that the family of the plaintiffs was provided with transit accommodation in Quarter No. E-60, Hudson Lines till alternative and regular plot is allotted in lieu of said premises. They were required to produce the documents to become eligible for alternative allotment. That Sh. Rajrishi Vaish/defendant was not having these documents, as he never resided in property No. E-60. That the alternative allotment to the defendant Sh. Rajrishi Vaish, was, therefore, illegal and against the public policy. That defendant no.4, Sh. Rajrishi Vaish was not a refugee and he was not covered by Gadgil Assurance. Consequently, he could not get any benefit under the Kingsway Camp Redevelopment Scheme and at the best he could get a JJ(R) plot of 25 sq.yds. provided that he lived in CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 5 / 27 Kingsway Camp area and covered by its redevelopment scheme. That Sh. Rajrishi Vaish never lived in Qr. No. E-60, Hudson Lines and by playing fraud he obtained a lease executed in the year 1978 in his name and produced it before DDA to get the alternative allotment against property No. E-60, Hudson Lines.
It is submitted by the plaintiff that Smt. Pappo Devi executed a Will bequeathing property No. 60 to the plaintiffs just one day before her death on 13.04.1969. That the Will dated 12.04.1969 being the latest one, the Will relied upon by defendant no.4 has no legal validity and is void. That the case of Sh. Rajrishi Vaish is based on fraud and he could not even produce the so-called Will dated 07.06.1969 allegedly executed by Smt. Pappo Devi. He also had to produce the proof in support of his case that he was a resident of Qr. No. E-60, Hudson Lines. That defendant no.4 Sh. Rajrishi Vaish by playing fraud and in collusion with official of DDA, obtained allotment of plot No.2460, Hudson Lines, measuring 160 yards. That Smt. Pappo Devi died in the year 1969 and in the allotment letter dated 29.03.1983, she was also mentioned as joint allottee with Sh. Rajrishi Vaish. That the allotment of Plot No.2460, Hudson Lines to Sh. Rajrishi Vaish is against the public policy. That the claim of sh. Rajrishi Vaish that he was adopted by Smt. Pappo Devi, is false and untenable according to Section 11(1) of the Hindu Adoption and Maintenance Act, 1956. That on the date of this alleged Will, the defendant no.4 has fraudulently and by misrepresentation of facts before the Land and the Settlement Wing of the Department of Rehabilitation of the defendant no.2, got his own name substituted as successor in interest of Smt. Pappo Devi, the deceased regarding the aforesaid property bearing No. E-60, Hudson Lines, Kingsway Camp, Delhi-9. That the said substitution is illegal and unlawful. That at the time of effecting substitution of the above property, CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 6 / 27 defendant no.1 and 2 never issued any notice and never invited objections from the legal representatives of Smt. Pappo Devi and from other co-allottees. Hence, the said substitution is liable to be set aside.
It is further submitted by the plaintiffs that the defendants no. 1 and 2 executed lease deed/conveyance deed in favour of defendant no.4 regarding the Qr. No. E-60, Hudson Lines, KW Camp, Delhi-9, which was got registered in the office of the S.R. Delhi on 13.04.1978 and the same are also a nullity because the same have been got executed fraudulently by the defendant no. 4 only on the basis of a fabricated and forged Will dated 07.02.1969. That further proceedings which are being conducted by the defendant no.3 regarding allotment of plot no. 2460 measuring 160 sq. yds. under the Kingsway Camp Re-development Scheme drawn against property No. E-60, Hudson Lines, KW Camp, Delhi-9 in the name of defendant no.4, who is not at all concerned with this property, are illegal and unlawful. This allotment must be in the joint names of the present plaintiffs, i.e. the legal/natural heirs of Smt. Pappo Devi, the original allottee/owner of aforesaid E-60, Hudson Lines, KW Camp, Delhi-9.
It is also submitted that a notice dated 02.04.1983 has already been served U/S 80 CPC, on defendant no. 1 and 2. Notice on defendant no.3 has not been issued because they are allotting re- developed plots under the re-development scheme only on the basis of records sent to them by defendants no. 1 and 2.
It is further averred by the plaintiffs that cause of action accrued in favour of plaintiffs and against the defendants on 17.04.1980 when defendant no. 4 filed eviction petition as owner/ landlord in respect of the suit property against plaintiff no. 3 and his wife before the the then Ld. Rent Controller, Delhi. That cause of CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 7 / 27 action again arose on 22.03.1992 when one Sh. Dal Chand, clerk of defendant no. 1 deposed before the then Ld. Additional Rent Controller, Delhi on solemn affirmation on the basis of which plaintiffs came to know that the said property stands mutated in the name of defendant no. 4 in their records on the basis of an alleged Will and that lease/ conveyance deed have been got executed and registered in favour of defendant no. 4. That lastly, the cause of action accrued in favour of plaintiffs and against the defendants when plaintiff no. 3 received a letter bearing No. L-7(2460) 83/3343 dated 29.11.1983 at his aforesaid residence, issued by the defendant no. 3 regarding allotment of plot no. 2460 drawn against E-62, Hudson Lines, Kingsway Camp under Kingsway Camp Re-development Scheme, addressed to defendant no. 4 instead of the present plaintiffs.
Lastly, it is prayed that a decree of declaration and injunction in favour of plaintiffs and against the defendants be passed to the effect-
(i). That the Will dated 07.02.1969 allegedly executed by Smt. Pappo Devi in favour of defendant no.4 is illegal and fraudulent being fabricated/forged and hence null and void.
(ii). That the substitution of Sh. Rajrishi Vaish, defendant as successor in the interest of Smt. Pappo Devi regarding property no.
E-60, Hudson Lines, Kingsway Camp, Delhi-9 was a nullity and liable to be cancelled and declared as void.
(iii). That the lease deed and conveyance deed registered on 13.04.1979 in favour of defendant no.4 was also a nullity.
(iv). That a decree of mandatory injunction be passed directing defendant DDA to allot plot No.2460, Hudson Lines in the name of the legal heirs of deceased Smt. Pappo Devi after canceling the allotment of defendant no.4 and his eviction from the aforesaid plot.
(v). That defendant no.4 be restrained permanently by a decree of CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 8 / 27 permanent injunction from raising construction and completing any building on plot No.2460 and further to transfer and sub-let the property.
(vi). That the defendant no.3 be restrained permanently by a decree of permanent injunction in favour of plaintiffs from making allotment of plot No. 2460, measuring 160 sq. yds. and handing over possession thereof under the Kingsway Camp Re-development scheme allotted against H.No. E-60, Hudson Lines, Kingsway Camp, Delhi-9 to any person other than plaintiffs.
2. In its Written Statement, defendant no. 1,2 & 3 have inter-alia submitted that the present suit is not maintainable for lack of service of statutory notice U/S 53-B of DDA Act, 1957. That the L&DO department vide letter dated 20.03.1978 mutated the quarter No.E- 60, Hudsan Line, Delhi in favour of Sh. Raj Rishi Vais. Subsequently, the L&DO, Ministry of Urban Development has executed the lease deed in respect of Quarter No.E-60, Hudson Line, Delhi on 10.04.1978 in favour of Sh. Raj Rishi Vaish, S/o Sh. Hira Lal and Plot No.2460, Hudson Line, Delhi was allotted against quarter No. E-60 stated above by MCD through draw of lots held on 17/18.05.1970 to Smt. Pappo Devi, W/o Sh. Arjun Dass, Sh. Raj Rishi Vaish and Sh. Hira Lal. As per practice policy of Govt. of India, the allotment should have been made in favour of lessee of quarter. Therefore the possession of the plot was handed over on 19.05.1993 to Sh. Raj Rishi Vaish being lessee of quarter No. E-60, Hudson Lines, Delhi as per the lease deed and conveyance deed of the quarter stated above executed by L&DO department and the name of Smt. Hansa Vaish was included as per policy at that time as the name of wife also used to be included with her husband. The lease deed also stands executed in the name of Sh. Raj Rishi Vaish and CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 9 / 27 Smt. Hansa Vaish.
It is further contended that during the proceedings of the transfer of the quarter, all the plaintiffs filed affidavits wherein they declared that defendant no.4 was the legal heir of late Smt. Pappo Devi and that Late Smt. Pappo Devi had left unregistered Will which was genuine and liable to be acted upon by virtue of which the quarter E-60, Hudson Lines, Kingsway Camp, Delhi became the property of defendant no.4. That plaintiff no.5 appeared before the Managing Officer, GBP, Department of Rehabilitation, Settlement Wing, Ministry of Works & Housing, Supply and Rehabilitation, Govt. of India and made a statement that Smt. Pappo Devi, his mother, who was the allottee of aforesaid quarter has executed a Will being genuine should be acted upon for mutating the said quarter in the name of Sh. Raj Rishi Vaish, defendant no.4. He also confirmed the statement given by all other legal heirs in their affidavits. The quarter referred to was mutated in favour of the defendant no.4. That the allotment of the plot is to be made to the recognized lessee of land and Development Office. Hence, the letter of allotment as per policy and draw of lot, has rightly been sent. That defendant no.3 is allotting the plots under the Redevelopment Scheme of Kingsway Camp on the basis of records received from the office of the Land & Development Office. No notice U/S 53(B) has been served on defendant no.2 and thus the suit is not maintainable. The mutation was allowed as per statement of plaintiff No. 5 and affidavits of all the plaintiffs. That the plaintiff is not entitled to the decree prayed for. That the suit of the plaintiffs deserves to be dismissed.
3. Record reveals that replication has also been filed by the plaintiff to the written statement filed by defendants no. 1,2 & 3 filed CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 10 / 27 by the defendants no. 1,2 & 3. The plaintiff has denied all the allegations levelled by the defendant and reiterated and reasserted all the facts as stated in the petition.
4. Thereafter, amended W.S. was filed on behalf of defendant no. 4, in which it is inter-alia submitted by defendant no. 4 that the suit is not maintainable as the plaintiffs have not claimed the consequential relief of possession which is necessary to be claimed along with the declaration. That the plaintiffs have not come with clean hands as they have concealed the material facts which go the vital part of the case. That the material facts are that the plaintiff no. 3 and 4 are the marginal witnesses of the Will dated 07.02.1969, which is being challenged by the plaintiff. That after the death of their mother Smt. Pappo Devi, the defendant no. 4 in whose favour the said Will was executed filed an application for mutation in the office of the land and development on the basis of the said Will and in the said proceedings for mutation, the plaintiff/ legal heirs of deceased Smt. Pappo Devi filed their affidavits admitting the Will to be true and genuine and stating the same to be acted upon. That the suit is misconceived and malicious. That the plaintiffs are prompted by malice, illegal designs and ulterior motives with a view to blackmail the defendant no. 4 in order to compel him to pay the huge amount for which they have asked him many times as the prices of the property have gone up these days and when the defendant no. 4 refused to comply with the demands, they resorted to come up with present suit in order to drag the defendant no. 4 to achieve their ulterior motives. That the suit is barred by law of estoppel. That the plaintiffs are now estopped by their own acts and conduct. That by filing affidavits in support of the genuineness of the Will dated 07.02.1969 in favour of the defendant no. 4 and also making CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 11 / 27 statements at the time of proceedings for mutation in the office of land development, they got no right to say at this stage that the said Will is a forged document. That the plaintiffs are not in possession of the property in suit. That the very perusal of the title of the suit would show that the plaintiff no. 1,2 & 5 are not residing in the property at all as per admission of the plaintiffs themselves. That the plaintiff no. 4 is not residing in the suit property. That it is only the plaintiff no. 3 who is residing in the property, but that too in the capacity of a tenant under the defendant no. 4 in one portion of the property and in another portion Sh. Mohinder Singh is a tenant under the replying defendant. That the disposition of the property by virtue of the Will executed in favour of the defendant no. 4 was not challenged by the plaintiff and they rather supported vide their affidavits and statements in the office of the Land and Development that the Will dated 07.02.1969 was a genuine Will. Sh. Swaroop Singh and Smt. Shanti Devi were residing as tenant there under respondent no. 4 and Sh. Mahender Singh was also residing as a tenant under defendant no. 4 and were paying rent against receipts. That it is not required to reside in quarter No. E-60 (supra). That Smt. Pappo Devi executed a Will in favour of defendant no. 4 namely Raj Rishi Vaish dated 07.02.1969 and Sh. Swaroop Singh and Sohan Singh have appended their signatures on it and on 17.03.1978, Chhattar Singh made a statement before the L & D.O. office that the Will dated 07.02.1969 was genuine and can be acted upon. He gave further undertaking that he will be responsible for any adverse consequences if arisen at any time at any stage. That the suit is time barred as the lease deed of the suit property, sought to be declared null and void by present suit, is dated 13.04.1978 and the present suit has been filed in the month of February, 1984. As such, the suit is liable to be dismissed being time barred.
CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 12 / 275. Record reveals that replication has also been filed by the plaintiff to the written statement filed by defendant no. 4. The plaintiffs have denied all the allegations levelled by the defendant no. 4 and reiterated and reasserted all the facts as stated in the plaint.
6. From the pleadings of the parties following issues were framed:-
1. Whether the suit is barred for want of notice U/Sec. 53-B of DD Act ? OPD
2. Whether the plaintiff is entitled for the relief of declaration as prayed for ? OPP
3. Whether the plaintiff is entitled for the relief of M-I as prayed for ? OPP
4. Whether the plaintiff is entitled for the relief of P-I as prayed for ? OPP
5. Relief.
7. Perusal of the record shows that vide order dated 17.09.2004, an additional issue was also framed by the then Ld. Civil Judge i.e. "Whether the suit is maintainable after its abatement with respect to plaintiff no. 1 ?" It was further directed that evidence on this issue be also led along with other issues.
8. Perusal of the record further reveals that proceedings against plaintiff no. 1 was abated vide order dated 17.09.2004 and proceedings against plaintiff no. 3 was abated vide order dated 30.01.2008.
9. Thereafter the matter was fixed for Plaintiff's Evidence. Plaintiff CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 13 / 27 examined Sh. Swaroop Singh as PW-1. PW-1 relied upon various documents i.e. PW-1/1 to PW-1/5 and Mark-A, Mark-B and Mark-C. Plaintiff also examined Sh. Sohan Singh as PW-2 and Sh. J.R. Gorh, Assistant Director, DSB, DDA as PW-3.
10. Thereafter, evidence was led by the defendants. Defendant/ DDA examined Sh. Giri Raj Singh, Assistant Director, OSB, DDA as DW-1, Sh. Anil Kumar, Record Keeper, House Tax Department, Civil Line Zone, MCD (without number), Sh. Sube Singh, Assistant Director, OSB, DDA as DW-1 (number DW-1 again given), Sh. T.N. Gupta, Assistant Director, DDA as DW-1 (number DW-1 again given), Sh. D.C. Sharma, Assistant Director, DDA as DW-1 (number DW-1 again given). Sh. D.C. Sharma has relied upon the documents viz. Ex. DW1/1 (OSR) i.e. copy of allotment letter dt. 28.09.1949, Ex. DW1/2 (OSR) i.e. copy of mutation letter dt. 20.03.1978, Ex. DW1/3 (OSR) i.e. copy of deed of conveyance dt. 10.04.1978, Ex. DW1/4 (OSR) i.e. copy of allotment letter dt. 29.10.1983, Ex. DW-1/5 (OSR) i.e. copy of lease deed dt. 10.04.1978, Mark-A i.e. affidavit of Chhattar Singh, Mark-B i.e. affidavit of Saroop Singh, Mark-C i.e. affidavit of Smt. Ram Jappo Devi, Mark-D i.e. affidavit of Sohan Singh, Mark-E i.e. affidavit of Ram Kali, Mark-F i.e. affidavit of Raj Rishi Vaish, Mark-G i.e. Statement of Chhattar Singh, Mark-H i.e. copy of Will dt. 07.02.1969.
All the witnesses were cross examined at length. Thereafter, defendant/DDA closed its evidence.
Defendant no. 4 examined Sh. R.N. Guglani, as D4W1, who relied upon various documents and he was cross examined at length. Thereafter, defendant no. 4 closed his evidence.
11. I have heard final arguments advanced on behalf of all the CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 14 / 27 contesting parties and also carefully gone through the written submissions and case laws relied upon by them.
12. My issue-wise findings are as under: -
FINDING ON ISSUE NO. 1:-
1. Whether the suit is barred for want of notice U/Sec. 53-B of DD Act ? OPD
13. The onus to prove this issue was upon the defendant. No specific evidence was led by the defendant on this issue. It is relevant to refer the observations of the Hon'ble High Court of Delhi in the case of "Col. A.B. Singh (through LRs) V/s Shri Chunni Lal Sawhney and Others (RFA No.96/2002, decided on 05/10/2011),"
which are reproduced hereinafter:-
"In any case, this issue is no longer res integra in as much as, it has been held by division bench judgment of this court in "Yashoda Kumari V/s MCD and Others (AIR 2004 Delhi 225),"
that once there is a contest to the suit, the suit cannot be held to be barred for not giving of notice U/S 53B of DDA Act in as much as the basic object of Section 53B, like Section-80 CPC is to prevent the matters from coming to court and once the matter reach the court and are contested the suit should not be dismissed on such technical grounds."
14. The present case has been contested on merits and has gone through the rigors of trial and thus, as per the observation of Hon'ble High Court of Delhi as aforementioned, the non-service of notice U/S 53B of DD Act cannot be held to be fatal to justify the dismissal of the suit on the ground of maintainability. In the considered opinion of this court, the defendant/DDA has contested the case at length and the dismissal of the suit which was filed in the year 1984 on this technical non-compliance of Section-53B of DD Act would not be justified.
CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 15 / 27Hence, issue no. (1) is decided against the defendant and in favour of the plaintiffs.
FINDING ON ISSUE NO. 2, 3 and 4 (All the issues are taken up together as they are fairly interconnected with each other.)
2. Whether the plaintiff is entitled for the relief of declaration as prayed for ? OPP
3. Whether the plaintiff is entitled for the relief of M-I as prayed for ? OPP
4. Whether the plaintiff is entitled for the relief of P-I as prayed for ? OPP
15. It is pertinent to note that vide order dated 13.12.1994, the Ld. Predecessor of this court has held that the issue of limitation will be decided alongwith the other issues after recording of the evidence. The Ld. Counsel for defendants have specifically questioned the maintainability of the suit on the ground of being barred by limitation. Same has been objected by the Ld. Counsel for the plaintiffs by asserting that the suit is well within limitation.
16. It is to be noted that the present suit is suit for declaration and permanent injunction. It is trite to mention that in case any person files a suit for cancellation of any document he has to file the said suit within the period of limitation from the date of knowledge of the said document. It has been the contention of the Ld. Counsel for answering defendants that the present suit is time- barred as the alleged cause of action arose on 07.02.1969, whereas the suit has been filed on or after on 30.01.1984 which is beyond the prescribed period of limitation i.e., 3 years. Same has been vehemently refuted CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 16 / 27 by the Ld. Counsel for plaintiffs with submission that he has made clear and specific averment in the plaint that knowledge of the fraud committed by the defendant came to his knowledge only on 22.03.1982 when one Sh. Dal Chand, Clerk of Defendant no.1 deposed before the then Ld. Rent Controller on solemn affirmation which revealed that the property in question stands mutated in the name of defendant no. 4 in their records on the basis of the alleged 'Will' and Lease/Conveyance Deeds have been got executed and transferred in favour of defendant no.4.
17. Let's discuss the legal provisions relevant to decide the above issue. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 of Limitation Act is attracted. Article 59 of the Limitation Act applies specially when a relief is claimed on the ground of fraud or mistake. It only incorporates within its fold fraudulent transactions which are voidable transactions. A suit for cancellation of instrument is based on the provisions of Section 31 of the Specific Relief Act, which reads as under:
"31. When cancellation may be ordered. --
1. Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
2. If the instrument has been registered under the Indian Registration Act, 1908, the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 17 / 27
18. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable document. It provides for a discretionary relief. Under the Limitation Act, 1963, the schedule prescribes the period of limitation. As per the Article 59 of the said Act three years period has been provided for the purpose of filing of a suit to cancel or set aside an instrument or decree or for the rescission of a contract. It prescribes the time which begins to run when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first come to his knowledge. It is pertinent to note that as per Section 2(g) of Indian Contract Act an agreement not enforceable by law is said to be void whereas the term 'voidable' has been defined under Section 2(i) of the Indian Contract Act which reads as "an agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract". Further, it is settled principle of law that as per Section 19 of Indian Contract Act 1872, document alleged to have been obtained by fraud or by misrepresentation, would be a voidable and not a void document. Further, Article 58 of the Limitation Act provides for three years as the limitation period to initiate proceedings from the date of cause of action.
19. Now, let's examine the contention of the Ld. Counsel for plaintiff that the suit is not time-barred as the fraud committed by the defendant no. 4 came to their knowledge only on 22.03.1982 and as such it could not be filed earlier as per the prescribed time period of three years.
20. Before going into the question of limitation, I find it appropriate to discuss and examine the issue of fraud and its knowledge, which will go to the root of the case.
CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 18 / 2721. The present suit has been filed by the plaintiff praying therein to pass a decree of declaration and injunction in favour of plaintiffs and against the defendants to the effect that the Will dated 07.02.1969 allegedly executed by Smt. Pappo Devi in favour of defendant no.4 is illegal and fraudulent. That the substitution of Sh. Rajrishi Vaish/ defendant as successor in the interest of Smt. Pappoo Devi regarding property no. E-60, Hudson Lines, Kingsway Camp, Delhi-9 by the settlement wing of Department of Rehabilitation, Ministry of Works and Housing on the basis of will dated 07.02.1969 was a nullity and liable to cancelled and declared as void. That the lease deed registered as bearing no. 1387 in Addl. Book No. 1, Volume 3575, dated 13.04.1978 and conveyance deed bearing no. 1186 Addl. Book No. 1, Volume 3575, dated 13.04.1979 registered in favour of defendant no.4 was also a nullity. That a decree of mandatory injunction be passed directing defendant DDA to allot plot No.2460, Hudson Lines in the name of the legal heirs of deceased Smt. Pappo Devi after canceling the allotment of defendant no.4 and his eviction from the aforesaid plot. That defendant no.4 be restrained permanently by a decree of permanent injunction from raising construction and completing any building on plot No.2460 and further to transfer and sub-let the same. That the defendant no.3 be restrained permanently by a decree of permanent injunction in favour of plaintiffs from making allotment of plot No. 2460, measuring 160 sq. yds and handing over possession thereof under the Kingsway Camp Re-development scheme allotted against H.No. E-60, Hudson Lines, Kingsway Camp, Delhi-9 to any person other than plaintiffs.
22. It is the case of the plaintiff that defendant no.4/Sh. Raj Rishi Vaish filed a petition for eviction against plaintiff No.3 and his wife CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 19 / 27 Smt. Shanti Devi in the Court of Addl. Rent Controller, Delhi. In the said petition defendant no.4 has alleged that he is the owner of H.No.E-60, Hudson Lines, Kingsway Camp, Delhi-9. That the said defendant no.4 is relying on a 'Will' alleged to have been executed by Smt. Pappo Devi in his favour on the ground that she adopted defendant no.4 as her son. That defendant no.1 and 2 had done mutation/substitution in respect of H.No. E-60, Hudson Lines, Kingsway Camp, Delhi-9 and transferred the same in the name of the defendant no.4. That the family of the plaintiffs was provided with transit accommodation in Quarter No. E-60, Hudson Lines till the allotment of alternative and regular plot in lieu of premises No. E-
60. They were required to produce the documents to become eligible for alternative allotment. The defendant no. 4 Sh. Rajrishi Vaish has none of these documents as he never resided in property No. E-60. The alternative allotment to the defendant Sh. Rajrishi Vaish, was, therefore, illegal and against the public policy. That defendant no.4, Sh. Rajrishi Vaish was not a refugee and he was not covered by Gadgil Assurance. Consequently, he could not get any benefit under the Kingsway Camp Redevelopment Scheme and at the best he could get a JJ(R) plot of 25 sq.yds. That Sh. Rajrishi Vaish never lived in Qr. No. E-60, Hudson Lines and by playing a fraud obtained a lease executed in the year 1978 in his name and produced it before DDA to get the alternative allotment against property No. E-60, Hudson Lines. The Will dated 12.04.1969 being the latest one, the Will relied upon by defendant no.4 has no legal validity and is void. It is the contention of the Ld. Counsel for plaintiffs that there was no occasion or reason for the late Pappo Devi to execute a 'Will' in favour of defendant no.4 on the ground that she adopted defendant no. 4 as her son as she was already having four sons and two daughters.
CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 20 / 2723. In the present case, the onus was on the plaintiff to establish the existence of fraud by leading appropriate evidence to prove if the impugned documents are forged and bogus. The entire premises of the case of the plaintiffs is rooted and rests in challenging the 'Will dated 07.02.1969' alleged to have been executed by Smt. Pappo Devi in favour of defendant no.4. The present suit has been filed on 30.01.1984. There is substantial gap of around 15 long years in filing the present suit. It has been contended on behalf of the plaintiffs that they came to know about the alleged 'Will dated 07.02.1969' only on 22.03.1982 when one Sh. Dal Chand, Clerk of Defendant no.1 deposed before the then Ld. Rent Controller on solemn affirmation which revealed that the property in question stands mutated in the name of defendant no. 4 in their records on the basis of an alleged 'Will' and Lease/Conveyance Deeds have been got executed and transferred in favour of defendant no.4.The above version of the plaintiffs gets contradicted by their own assertion in the plaint that the cause of action first accrued on 17.04.1980 when defendant no.4 filed eviction petition as owner/landlord in respect of the suit property against the plaintiff no.3 and his wife before the Ld. Rent Controller.
24. There is no plausible explanation as to what steps were taken by the plaintiffs to guard their interest at the very first instance when they came to know about the eviction petition filed by the defendant no.4 wherein, he claimed to be the owner of the suit property. A reasonable prudent person placed in the similar circumstances is supposed to raise the sufficient alarm to see their interests are not compromised and withered in the wake of their inertia in not rising to the occasion at the earliest. When a person files petition claiming to be the owner of the property, it must send the wake-up signal to the CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 21 / 27 other party contesting the claim of ownership. The other person must exhibit will and resolve by immediately swinging into action by summoning all the actions suitable to protect his interest. The same appears to be missing here in the case of the plaintiffs. Moreover, nothing has been brought on record to suggest if any criminal action was launched against the defendant no. 4 regarding the alleged fraud. There is no explanation as to why no criminal complaint was lodged at the very first instance by the plaintiffs to serve the interest of justice despite allegations of such gravity. The conspicuous silence leaves no option before the court but to draw adverse inference against the case of plaintiffs.
25. It has been contended on behalf of answering defendants that during the proceedings of the transfer of the quarter, all the plaintiffs filed affidavits wherein they declared that defendant no.4 was the legal heir of late Smt. Pappo Devi and that Late Smt. Pappo Devi had left unregistered Will which was genuine and liable to be acted upon by virtue of which the quarter E-60, Hudson Lines, Kingsway Camp, Delhi became the property of defendant no.4. That plaintiff no.5 appeared before the Managing Officer, GBP, Department of Rehabilitation, Settlement Wing, Ministry of Works & Housing, Supply and Rehabilitation, Govt. of India and made a statement that Smt. Pappo Devi, his mother, who was the allottee of aforesaid quarter has executed a Will, being genuine, should be acted upon for mutating the said quarter in the name of Sh. Raj Rishi Vaish, defendant no.4. He also confirmed the statement given by all other legal heirs in their affidavits.
26. During his cross-examination, plaintiff/PW-2 admitted to have filed the documents/affidavits in L&DO Department. It has CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 22 / 27 specifically come in his deposition that- 'It is correct that we have filed documents/affidavits in L&DO Department.". During his evidence, DW1/Sh. D.C. Sharma, Assistant Director, DDA has produced and relied upon the documents viz. Ex. DW1/1 (OSR) i.e. copy of allotment letter dt. 28.09.1949, Ex. DW1/2 (OSR) i.e. copy of mutation letter dt. 20.03.1978, Ex. DW1/3 (OSR) i.e. copy of deed of conveyance dt. 10.04.1978, Ex. DW1/4 (OSR) i.e. copy of allotment letter dt. 29.10.1983, Ex. DW-1/5 (OSR) i.e. copy of lease deed dt. 10.04.1978, Mark-A i.e. affidavit of Chhattar Singh, Mark-B i.e. affidavit of Saroop Singh, Mark-C i.e. affidavit of Smt. Ram Jappo Devi, Mark-D i.e. affidavit of Sohan Singh, Mark-E i.e. affidavit of Ram Kali, Mark-F i.e. affidavit of Raj Rishi Vaish, Mark-G i.e. Statement of Chhattar Singh, Mark-H i.e. copy of Will dt. 07.02.1969. However, except giving formal suggestions, Ld. Counsel for the plaintiffs could not extract anything to dispute the genuineness of above documents. No independent witness has been examined to contradict the depositions of defendant's witnesses. Neither any material of cogent and credible nature has been brought to the notice of the court to inspire the confidence of the court in the version put forth on behalf of plaintiffs. The documents have been produced from the government records. The affidavits are said to have been attested by First Class Magistrate. Plaintiff/PW-2 admitted to have filed the documents/affidavits in L&DO Department. It is the settled law that pleadings are not evidence, far less proof. The claim of the existence of any fact requires to be proved by adducing the evidence of tangible nature.
27. It is settled law that for shifting of the burden it would require more than merely pleading that the documents are forged one and it must be proved by producing tangible evidence. Plaintiffs have not CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 23 / 27 led any evidence on the allegation of fraud. Moreover, plaintiffs have not led any substantive evidence to prove the existence of alleged Will dated 12.04.1969, which they claimed to be genuine one. There is no evidence to show that the documents in question are forged one. As such plaintiffs have failed to prove that the aforementioned affidavits are not genuine one. The said affidavits/statements are stated to have been filed in the year 1978 which goes on show that the mutation of the suit property was done in favour of defendant no. 4 to the knowledge of plaintiffs. Consequently 'The alleged Will dated 07.02.1969. was also in the knowledge of the plaintiffs atleast since the year 1978. The lease/ conveyance deed also pertains to year 1978/79. The present suit has been filed in the year 1984 which exceeds the prescribed period of limitation. It frustrates the entire case of the plaintiffs.
28. In view of the discussions and considering the materials available on record, the issue no. 2, 3 and 4 is decided in favour of the answering defendants and against the plaintiff.
29. Since the plaintiffs could not establish the existence of fraud, it must follow that the suit is ex-facie barred by the limitation. (Judgment relied upon- Rattan Singh v. Nirmal Gill, 2020 SCC Online SC 936, decided on 16.11.2020). The Issue of limitation is decided accordingly.
FINDING ON ADDITIONAL ISSUE :-
"Whether the suit is maintainable after its abatement with respect to plaintiff no. 1 ?"
30. It has been contended on behalf of the defendant no. 4 that CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 24 / 27 the suit already stands abated against plaintiff no. 1 and 3 and as such the whole suit should get abated as rights of the defendants vis-à-vis the plaintiff no. 1 and 3 have been already crystallized and no separable decree can be passed in favor of the other plaintiffs only. Reliance has been placed upon judgment of Hon'ble Supreme Court of India in the case titled as Hemareddi (D) Through Lrs. vs Ramachandra Yallappa Hosmani Civil Appeal No. 4103 of 2008 passed on 07 May 2019. Same has been opposed by the Ld. Counsel for plaintiffs by arguing that the right to sue still survives in favour of the other plaintiffs.
31. In Hemareddi (D) Through Lrs. vs Ramachandra Yallappa Hosmani (supra), Hon'ble Supreme Court of India has held:-
"18. In this case, undoubtedly as we have noted the appellant and his late brother sued as plaintiffs for a declaration that the first defendant was not the adopted son and he has no rights. They also sought a prohibitory injunction. The suit stood dismissed by trial court. Let us take the converse position. Assuming that the suit was decreed by the trial court and appeal was carried by the defendants, and pending the appeal by the defendants, if the late brother of the appellant had died and if the defendants had not impleaded the legal representatives of late brother and the appeal abated as against him, would it then not open to the appellant as respondent in the appeal to contend that if the appeal was to be allowed to proceed in the absence of the legal representatives of his late brother and succeed, there would be an inconsistent decree. On the one hand, there will be a decree by the trial Court declaring that the first defendant was not the adopted son and had no interest in the property qua the late brother of the appellant. On the other hand, the appellate court could be invited to pass a decree which should be to the effect that the first defendant was found to be the adopted son and had right and interest over the property and a declaration to that effect would have to be granted. Would not the appellate court then have to necessarily hold though the decree in favour of the deceased brother of the appellant has become final, and under it, a declaration is granted that the defendant No.1 is CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 25 / 27 not the adopted son and he has no right to claim the property and there is an injunction against him that he is the adopted son opposed to the decree which has been passed by the trial court which has attained finality. We would think that the appellate court would indeed have to refuse to proceed with the appeal on the basis that allowing the appeal by the defendants would lead to an appellate decree which is inconsistent with the decree which has become final as against the deceased brother of the appellant.
....................................................................
20. It may be true that if a separate suit had been filed by the late brother and it had abated on his death, there will be no decree on merits and the suit would have abated. No doubt, it could be argued that even though the appellant and his late brother set up the case of joint right, it would only mean that they are co-owners of the property, and therefore, they had independent rights as co- owners which could be canvassed in two different proceedings, and therefore, the decree of the trial court dismissing the suit be treated as two different decrees - one decree against the appellant and the other against his late brother. Even then, the decree, which the High court would be invited to pass, would be contradictory and inconsistent with the decree as against late brother of the appellant which may not be permissible in law.
21. The decree, which the appellant, if successful in the appeal, would obtain, would be absolutely contrary to the decree which has also attained finality between his late brother and the defendants. They are mutually irreconcilable, totally inconsistent. Laying one side by side, the only impression would be that one is in the teeth of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed."
32. In the present case also, the suit has been filed by the plaintiffs claiming to joint owner of the property. It is matter of record that proceedings against two of the plaintiffs already stand abated. The implication of the same is that the rights of defendants vis-à-vis the said plaintiffs have been already crystallized and no separable decree can be passed in favor of the other plaintiffs only. In such circumstances, the suit becomes untenable. In view of the above CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 26 / 27 legal position and considering the facts and circumstances of the case, the above issue is decided in favour of the defendants and against the plaintiffs.
RELIEF: -
33. In view of findings on the issues and reasons as given earlier, present suit is dismissed.
34. Decree sheet be prepared accordingly.
35. File be consigned to Record Room after due compliance.
Announced in Open Court. Digitally signed
on 4th October, 2021. DEEPAK
by DEEPAK
KUMAR
(This judgment contains 27 pages)
KUMAR Date:
2021.10.04
17:20:58 +0530
(DEEPAK KUMAR-I)
Commercial Civil Judge,
West District, Delhi.
CS No. 607519/2016 Ram Kali (Through LRs) & Ors. Vs. Union of India & Ors. Page 27 / 27