Delhi District Court
Smt. Manju Jain vs Sh. Manak Chand Jain (Deleted From The ... on 5 September, 2018
IN THE COURT OF ANKUR JAIN: ADDL.DISTRICT JUDGE-10
(CENTRAL): TIS HAZARI COURTS: NEW DELHI
Civil Suit No. 131/17(11478/16)
In the matter of:
Smt. Manju Jain
Wife of Sh. Ramesh Jain
R/o 27/32, Sagar Sangam Bandra
Reclamation Bandra (West)
Mumbai 400050 ......Plaintiff
Versus
1. Sh. Manak Chand Jain (deleted from the array of parties -
vide order dt.6.3.2018 - since deceased)
son of Late Sh. Bal Chand Jain
R/o C-2/54, Safadarjung Development Area,
Hauz Khas, New Delhi.
2. Sh. Nirmal Jain
son of Late Sh. Manak Chand Jain
R/o C-2/54, Safadarjung Development Area,
Hauz Khas, New Delhi.
3. Sh. Parveen Jain
son of Late Sh. Manak Chand Jain
R/o C-2/54, Safadarjung Development Area,
Hauz Khas, New Delhi.
4. M/s. Luhadia Developers Pvt. Ltd.
Regd. Office: C-2/54 Safadarjung Development Area,
Hauz Khas, New Delhi.
5. M/s. Luhadia Properties Pvt. Ltd.
Regd. Office: C-2/54 Safadarjung Development Area,
Hauz Khas, New Delhi. ....Defendants
SUIT FOR DECLARATION, CANCELLATION OF
DOCUMENTS AND OTHER RELIEFS.
Date of Institution of Suit : 30.11.1998
Date of reserving judgment : 26.07.1998
Date of pronouncement : 05.09.2018
Page 1
SUIT NO. 132/17(10389/16)
1. Manak Chand Jain
s/o late Sh. Bal Chand Jain (since deceased and deleted from
array of parties vide order dated 6.3.2018)
2. Smt. Kamal Prabha Jain
w/o late Sh. Manak Chand Jain
3. Sh. Nirmal Jain s/o late Sh. Manak Chand Jain
4. Sh. Praveen Jain s/o late Sh. Manak Chand Jain
All r/o C-II/54, Safdarjung Development area
New Delhi- 110016 ....Plaintiffs
Vs.
Sh. Ramesh Jain
s/o late Sh. Manak Chand Jain
r/o 27/32, Sagar Sangam
HIG Colony, Bandra Reclamation
Bandra West , Mumbai - 400 050 ... Defendant
SUIT FOR PERMANENT INJUNCTION
Date of Institution of Suit : 28.01.2000
Date of reserving judgment : 26.07.1998
Date of pronouncement : 05.09.2018
SUIT NO. 133/17(12157/16)
1. Praveen Jain
2. Nirmal Jain
Both sons of late Sh. Manak Chand Jain
r/o C-2/54, Safdarjung Dev. Area
New Delhi ...Plaintiffs
Vs.
1. Smt. Manju Jain
w/o Sh. Ramesh Jain
2. Sh. Ramesh Jain
s/o late Sh. Manak Chand Jain
Page 2
Both r/o 27/32, Sagar Sangam
Bandra Reclaimation, Bandra (West)
Mumbai - 400050 ....Defendants
SUIT FOR PERMANENT INJUNCTION
Date of Institution of Suit : 07.05.2003
Date of reserving judgment : 26.07.2018
Date of pronouncement : 05.09.2018
J U D G M E N T:-
The present judgment shall decide all the three suits as they were consolidated by the Hon'ble High Court in CM (M) 56/15 vide its order dated 19.11.2015. Evidence recorded in all the three suits was to be considered.
FACTS OF SUIT NO.: 131/17(11478/16)
1. The brief facts of the case as set out in the plaint are that plaintiff i.e. Manju Jain is the sister in law of defendants no. 2 and 3 i.e. Nirmal Jain and Praveen Jain. The companies i.e. defendant no. 4 & 5 were floated by defendant no.1,2 and 3. Ramesh Jain is the husband of Manju Jain and brother of Parveen Jain and Nirmal Jain. It is the case of the plaintiff that she along with her husband and two daughters were residing in House no. C-II/54 S.D.A. Hause Khas, New Delhi but had shifted to Bombay, however, continued to occupy one room in first floor of the house where the important papers and documents in Almirah under her lock and key were kept which contained valuable documents. It is further stated that plaintiff is the recorded owner in possession of the farm/agricultural land admeasuring 13 bigas 14 Page 3 biswas in village Bijwasan which was purchased by her vide two Sale deeds dated 05.09.1980 and 03.02.1986 respectively. It is also stated in the plaint that husband of the plaintiff had acquired contiguous land admeasuring 6 bighas 15 biswas in Khasra no. 193/2/4 and defendant no. 3. Parveen Jain was also the owner of land admeasuring 6 bighas 10 biswas in the said village. On or about 19.08.1998 the plaintiff's brother came to know that land owned by the plaintiff has been sold. The husband of the plaintiff sought clarifications from his brothers who avoided giving any answers. Local inquiry was made by the plaintiff 's husband which revealed that the land has been transferred in the name of defendant no. 4 and 5 vide five Sale deeds all dated 03.06.1998. The sale deeds were executed by Parveen Jain representing himself to be the attorney of plaintiff vide Power of Attorney dated 28.05.1998. Inquiries also revealed that mutation was also effected in favour of defendant no. 4 and 5 somewhere in the first week of July, 1998 on the basis of the sale deed. It is further stated that the photocopies of the Power of Attorney available in the office of Sub-Registrar and the SDM showed that the Stamp paper on which the alleged Power of Attorney was executed was purchased on 28.05.1998, shown to have been executed at Mumbai, notarized on the same day in Delhi. Thus, it was stated by the plaintiff that the sale deeds are required to be cancelled as they were executed without the authority of the plaintiff. It was also stated that in the plaint that consideration amount was channelized through the accounts to show as if the actual transaction has taken place, whereas the unsigned documents which were lying in the Page 4 Almirah were misused including the bank account of Parveen Metal Industries, the erstwhile partnership firm of the plaintiff and Parveen Jain. Accordingly, the present suit was filed seeking declaration that plaintiff is and continues to be the owner and in possession of the farm/agricultural land admeasuring 13 bigha 14 biswas in Khasra no. 193/1 min (0-8), 193/2/2 min (0-9), 193/2/2 min (0-8) 193/2/2 (3-0), 193/1(3-11),193/2/2(2-18) and 193/1(3-0). It was also prayed that all sale deeds dated 3.6.1998 be declared as null and void, and the defendants should be restrained from making any representation that they are the owner of the said land.
2. Summons of the suit were issued on 30.11.1998. A joint written statement was filed by defendant no. 1, 4 and 5 wherein it was stated that defendant no. 1 has been wrongly impleaded in his individual capacity, since he is only the director of defendant no. 4 and
5. It was also stated that the Civil Court does not have the jurisdiction to try the suit and the remedy lies before the Revenue Courts under the Delhi Land Reform Act,1954. It was also stated that defendants no. 4 and 5 have acquired Bhumidari rights in respect of the land in suit subsequent to the execution of the Sale deed by the plaintiff through her attorney. It was also stated that plaintiff has not disclosed the factum of family settlement arrived at between the plaintiff and her husband on one hand and defendant no. 1 to 3 and Smt. Kamal Prabha Jain on the other hand. As per the family settlement defendant no. 1 to 3 had cleared off the debts of the husband of the plaintiff which Page 5 was suffered by him due to his habit of indulging in speculation. It was stated in pursuance to the family settlement which was arrived at in the year 1993, GPA was given by the plaintiff and moreover simplicitor suit for declaration and cancellation is not maintainable without seeking the relief of possession . It was claimed that since 1993 the defendants are in exclusive physical possession of the suit property. On merits it was denied that plaintiff and her husband have been occupying one room and first floor of the house or that any almirah belonging to the plaintiff was ever kept in the house. It was stated that ordinarily a person who is a resident of Bombay would not keep important documents in almirah in Delhi. It was also stated that No Objection certificate dated 05.03.1998 was also signed by the plaintiff for execution of the sale deeds and by virtue of the family settlement, plaintiff and her husband had relinquished their rights and interest in the said land.
3. Separate written statement was filed by defendant no. 2 and 3 which was more or less on the same lines. Hence the contents of the same is not being repeated. Replication to the written statements were filed wherein the contents of the written statements were denied and that of the plaint were reiterated.
4. After completing of the pleadings of the parties, vide order dated 26.02.2001 following issues were framed by the Hon'ble High Court of Delhi.
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1. Whether this court has no jurisdiction to try the suit? OPD
2. Whether the suit is not valued properly for the purposes of court fee and jurisdiction? OPD
3. Whether the suit is bad for misjoinder of parties as averred in the written statement of defendant nos.1,4 & 5 and defendants nos.2 & 37?
4. Whether the suit is not maintainable and barred by S/185 of the Delhi Land Reforms Act, 1954 as alleged in both the written statements? OPD
5. Whether there was a family settlement on 10.10.1993 between the plaintiff and her husband on the one hand and defendant nos. 1 to 3 and Smt. Kamal Prabha Jain on the other hand as alleged by the defendants, if so, to what effect? OPD
6. Whether the plaintiff appointed defendant no. 3 as her attorney vide power of attorney dated 28.5.1998 to execute the sale deeds in favour of defendant nos. 4 & 5, if so, to what effect? OPD
7. Whether the five sales stated to have been executed by defendant no. 3 as attorney of the plaintiff in favour of defendants nos. 4 & 5 for Rs. 13,47,000/- are fraudulent transactions as she neither sold nor consented to sell her property and no money was paid for the sale deeds?
Page 7 OPP
8. Whether the plaintiff is entitled to seek a declaration and cancellation of documents as prayed for?
9. Relief
5. On 11.09.2003 due to enhancement of pecuniary jurisdiction of the Hon'ble High Court of Delhi the present suit was transferred to the District Courts.
6. In order to prove its case plaintiff examined as many as 9 witnesses. PW-1 is Smt. Manju Jain plaintiff herself. She has relied upon sale deed dated 05.09.1980 as Ex. PW1/1, three Sale deeds dated 03.02.1986 is Ex. PW1/2 to Ex. PW1/4. The certified copy of the Sale Deeds by way of which the property was transferred in favour of defendants no. 4 and 5 were exhibited as Ex. P1 to Ex. P5. The certified copies of memorandum and articles of association of the two companies were Ex. P6 and P7. The certified copy of the order by way of which mutation in favour of defendant no. 4 and 5 was set aside was exhibited as Ex. PW1/5. The certified copy of the Power of Attorney dated 28.05.1998 obtained from the Revenue court was Ex. PW1/6. Copy of newspaper Ex. PW1/7 and Ex.PW1/8. Copies of complaint made to the police authority is Ex. PW1/9, legal notice is Ex. P1/10 and Ex. PW1/11. Reply to the legal notice is Ex. PW1/12, copy of Statement of Account of Manju Jain bearing no. SB2830 was Ex. PW1/13, certified copy of FIR No. 23/99 PS Kapashera Ex. PW1/14, Representation to various authorities was exhibited as Ex.
Page 8 PW1/15 to Ex. PW1/18. While the affidavit of PW1 was tendered, an objection was raised in respect of Sale deed Ex. PW1/4 to Ex. PW1/6 as they were originally never filed by the plaintiff. The objection regarding admissibility was to be decided at the final stage.
7. PW2 is Vinod Kataria, brother of the plaintiff. PW3 is Ramesh Jain who is the husband of plaintiff and both have supported the case of the plaintiff.
8. PW4 is Sanjeev Narang is the summoned witness from MTNL who produced the record pertaining to Telephone connection no. 5564567. PW5 Hem Chand Sharma produced the copies of mutation record pertaining to the suit property. He also deposed that the said mutation has been canceled vide dated 07.06.2000.
9. PW6 Umesh was a summoned witness who produced the sale deed which were exhibited as Ex. P1 to P5 and identified them to be true and correct copies. PW7 Sandeep could not produce the summoned record.
10. PW8 Ravinder produced the Statement of accounts in respect of current account of plaintiff, defendant no. 4 and 5, Nirmal Jain, Manak Chand Jain and Ranjana Jain.
11. PW9 J.F.Bennffaria from Bank of Baroda also produced Page 9 ledger Account pertaining to Parveen Metal Industries for the year 1996 to 1999. Thereafter PE was closed vide order dated 20.07.2009.
12. In order to prove its case, defendant in its support examined as many as 10 witnesses. DW1 was Sh. Praveen Jain and he relied upon deed of family settlement dated 10.10.1993 which was exhibited as Ex DW1/1, authority letter dated 10.10.1993 as Ex DW1/2, photocopy of Sale Deed dated 05.09.1980 as DW1/A, photocopy of three Sale Deeds dated 03.02.1986 as DW1/B to DW1/D. DW2 was Sh. Nirmal Jain who was defendant no.2 and supported the case of defendant. DW3 Sh. Yogesh Kumar brought the original applications filed by Sh. Praveen Jain for effecting Khasra Girdwari entries in respect of khasra no. 193/01, 193/2 193/2/4. DW-4 Sh. Shivender Chopra, was appointed as a Local Commissioner in suit titled as " Praveen Jain Vs. Manju Jain" and proved his report which was exhibited as Ex DW5/1, the rough proceedings were exhibited as Ex DW5/2, the photographs and the negatives were exhibited as DW5/3 (colly). DW6 was Sh. Manak Chand Jain, who was defendant no.1 and supported the case of defendant. DW7 Jagdish filed his evidence by way of affidavit which was exhibited as Ex DW7/A in which he stated that he has been ploughing and sowing the suit land for the last 10 years. DW8 is Sh. Ashok Kumar Bindroo, who filed his evidence by way of affidavit which was exhibited as Ex DW8/A and stated in his affidavit that he has never filled any blank signed cheque, DW9 Sh. Rajeev Ghai and DW10 Sh. Gulbir Sahni filed their evidence by way of Page 10 affidavit which were exhibited as Ex DW9/A and EX DW10/A respectively and stated that Praveen Jain is a member of Pushpanjali Farms Association. Sh. Bhagwan Deen was examined as DW6 where as it should have been DW8 for the sake of connivance he will be referred as DW11. Similarly Sh. Surender Khosla who was examined as DW7 will be referred to as DW12. Bhagwan Deen had filed his evidence by way of affidavit and has deposed on the same lines as DW7. Surender Khosla had deposed that Ramesh Jain had incurred losses to the tune of Rs. 40 lac in the year 1993 on account of speculative business of non-ferrous metals. Thereafter, DE was closed on 24.04.2010. Subsequently, defendant was granted one more opportunity to examine Kamal Prabha Jain. However they were unable to do so and vide order dated 18.08.2012 DE was closed and the case was listed for final arguments.
FACTS OF SUIT NO. 132/17(10389/16) TITLED AS "MANAK CHAND JAIN VS. RAMESH JAIN"
13. The brief facts of the said case are that a suit for permanent injunction was filed by the plaintiffs against Ramesh Jain on the ground that a family settlement was arrived at between the plaintiffs and the defendants and by virtue of said settlement, it was agreed that the land comprising in khasra no. 193/2/4 shall be owned and possessed by the plaintiff exclusively. Hence, by virtue of settlement dated 10.10.1993 the plaintiffs have become the exclusive owner of the suit land. It is was further stated that Smt. Manju Jain, wife of the Page 11 defendant was recorded Bhumidar of land comprising in khasra number 193/2/2 and 193/1 and 193/2/2 and was also a party to the said settlement as she had executed an authority letter on 10.10.1993. It is further stated that a dispute arose between the members of the family somewhere in May 1998 and a suit was filed by the wife of the plaintiff, challenging the sale deed executed by the wife of the defendant in favour of the companies. It was further stated in the plaint that plaintiff have enclosed the suit land by a boundary wall and installed a tube-well and an electricity connection. The defendant on 12.01.2000 visited the spot along with 2-3 other persons with the intention to interfere in the peaceful possession of the plaintiffs in respect of land comprising in Khasra no. 193/2/4 (6-15) and hence the present suit was filed.
14. Written Statement was filed by the defendant wherein it was stated that the suit is not maintainable as the same is barred under the provision of Section 185 of the Delhi Land Reforms Act, 1954. It was stated that there is no cause of action in favour of the plaintiff and under the grab of prohibitory injunction, the plaintiffs are seeks declaration which is not permissible in law. The material contents of the plaint were denied. The replication to the Written Statement was filed wherein the contents of the written statement were denied and that of the plaint are reiterated.
15. Vide order dated 20.08.2004, following issues were Page 12 framed:-
1. Whether the settlement arrived between the parties in view of the plea taken by the plaintiff in para no. 2 of the plaint, if so, its effect?
2. Whether the suit is not maintainable in view of the preliminary para no. 1 and 2 of WS? OPD.
3. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD.
4. Whether the plaint is not accordance with the provisions of order 6 and 7 CPC, if so, its effect? OPD.
5. Whether the suit is within time? OPP.
6. Whether the plaintiff is entitled for the relief claimed?
7. Relief.
16. In order to prove his case, plaintiff examined PW-1 Sh. Praveen Jain who relied upon family settlement dated 10.10.1993 which was exhibited as Ex PW1/1, Authority letter dated 10.10.1993 exhibited as Ex PW1/2, PW-2, Constable Shyamvir Singh who was directed to produce the record pertaining to DD no. 14A but he stated that the said record has since being destroyed. PW-3 Lalit Kumar Rana, Halka Patwari who proved the khasra girdwari for the year 2004-05, he was again examined to prove the applications made by the plaintiffs with respect to Form-P5. PW-4 Sudesh Kumar, Tax Assistant, PW-5 Surender Kumar Sharma could not produce the summoned record. PW6 Ravi Kumar produced the record pertaining to CR no. 2520039419, according to him, the said electricity meter was installed at Khasra no. 193 on the name of Praveen Jain and was Page 13 energized on 03.04.1984. PW-7 Bhagwan Deen Chaudhary filed his evidence by way of affidavit and stated that he is employed as a Care- Taker at the Agricultural farm known as "Vardhman Vatika" in khasra no. 193/1, 193/2/2, 193/2/3 and 193/2/4. PW-8 Prabha Nath Singh Kangoo produced the record in respect of status report dated 15.3.2004. PW-9 Anil Kumar Saxena was working with Shivani Oild & Gas Exploration and stated that his company organises AGM at suit property. It is also relevant to note that testimony of PW8 and PW9 are lying in the record of suit no. 133/17 titled as Praveen Jain Vs. Manju Jain. Bakar Khan as PW11, (it should have been PW10) filed his evidence by way of affidavit and deposed that he was working as a gardener in the suit property. Thereafter vide order dated 19.10.2015, PE was closed.
17. In order to prove its case, defendant examined himself as DW1 and relied upon Sale Deed dated 06.09.1980 as Ex DW1/1. Thereafter DE was closed on 10.12.2015.
FACTS OF SUIT NO. 133/17 (12157/16) titled as PRAVEEN JAIN VS. MANJU JAIN.
18. The present suit was filed in the year 2003. The facts of the said case are more or less same to the facts of the case titled as "Manak Chand Jain Vs. Ramesh Jain". The only difference is that the cause of action have been shown to be of 27.04.2003. Therefore the facts are not being repeated for the sake of brevity. Written Statement Page 14 was filed by the defendant wherein it is stated that the suit is not maintainable as according to the plaintiff they are not the owners and as per their own averments, Luhadia Developers and Luhadia Properties are the owner of the suit property. The remaining contents were more or less on the same lines as of the written statement filed in suit titled as Manak Chand Jain Vs. Ramesh Jain. Replication to the Written Statement was filed wherein the contents of the Written Statement were denied and that of the plaint were reiterated.
19. After completion of pleadings vide order dated 08.08.2005, the following issues were framed:-
1. Whether the plaintiff have no loucs standi to file the present suit? OPD.
2. Whether the suit is bad for mis-joinder and non-
joinder of parties? OPD.
3. Whether the suit is barred under section 41(h) of the specific Relief Act? OPD
4.Whether the suit is barred under the provision of Section 185 of Land Reforms Act? OPD.
5. Whether the suit is not properly valued for the purposed of court fee and jurisdiction? OPD.
6. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP.
7. Relief.
Page 15
20. In order to prove its case plaintiff examined PW-1 as Sh. Praveen Jain who relied upon family settlement dated 10.10.1993 which was exhibited as Ex PW1/1, Authority letter dated 10.10.1993 exhibited as Ex PW1/2, PW-2 Constable Shyamvir Singh who was directed to produce the record pertaining to DD no. 14A but he stated that the said record has since being destroyed. PW-3 Lalit Kumar Rana, Halka Patwari who proved the khasra girdwari for the year 2004-05, he was again examined to prove the applications made by the plaintiffs with respect to Form-P5. PW-4 Sudesh Kumar, Tax Assistant , PW5 Surender Kumar Sharma who could not produce the record, PW-6,Ravi Kumar who produced the record pertaining to CR no. 2520039419, according to him, the said electricity meter was installed at Khasra no. 193 on the name of Praveen Jain and was energized on 03.04.1984. PW7 Bhagwan Deep Chaudhary , who filed his evidence by way of affidavit and stated that he is employed as a Care-Taker at the Agricultural farm known as "Vardhman Vatika" in khasra no. 193/1, 193/2/2, 193/2/3 and 193/2/4. PW8 Rakesh Kumar Maurya , who stated that on 12.08.08, a raid was carried out in respect of meter no. 17047208 and at that time the registered consumer was Praveen Jain. PW9, Sh. Krishanvir who proved the rapat rojnamcha dated 11.06.2012. PW10 Kapil Sharma stated that he was carrying out minor repair in respect of electric motors, plumber and borewell. PW11, Bakar Khan who stated that he used to carry out plantation in farm house no. F-6, E-7 Pushpanjali Farm. Thereafter PE was closed vide order dated 19.10.2015.
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21. Defendant examined DW1 Manju Jain and DW-2 Ramesh Jain as their witness. Thereafter DE was closed vide order dated 11.12.2015.
22. My issue wise finding are as under:-
23. I shall first decide the issues in suit bearing no. 131/17 (11478/16) titled as "Manju Jain Vs. Manak Chand Jain".
24. ISSUE no. 1& 4 Whether this court has no jurisdiction to try the suit? OPD & Whether the suit is not maintainable and barred by Section 185 of the Delhi Land Reforms Act, 1954 as alleged in both the written statements? OPD.
25. The onus to prove both these issues was upon the defendant since they are interconnected they are taken up together. Sh. Sunil Chauhan, Ld. Counsel for the defendant no. 1, 4 and 5 and Sh. A. K. Dey ld counsel for defendant no.2 and 3 have argued that it is the only Revenue Courts which can grant the relief of declaration in view of the bar contained under section 185 of the Delhi Land Reforms Act, 1954 and have relied upon judgment of Hatti Vs. Sunder Singh AIR 1971 SC 2320. On the contrary, Ld. Counsel for plaintiff has argued that the suit is maintainable before this court and the relief of cancellation of documents cannot be granted by the Revenue Courts and since the Page 17 relief of declaration is incidental therefore it is only the civil courts which will have the jurisdiction.
26. In order to appreciate the controversy, it is relevant to see whether section 185 of Delhi Land Reforms Act, bars the present suit.
185. Cognizance of suit, etc. under this act (1) except as provided by or under this act, no court other than a court mentioned in column 7 of schedule 1 shall, notwithstanding anything contained in the code of Civil Procedure, 1908, take cognizance of any suit, application or proceedings mentioned in column 3 thereof.
27. In Hatti (Supra) , the grant of bhoomidari rights to one hatti was wrong and illegal and such a declaration should have been made in favour of Sunder Singh. In this context the Hon'ble Supreme Court held that the jurisdiction of the civil court is barred under section 185 of the Act.
28. In the present case, it was argued before this court that present case would be covered under Sr. no. 19 according to which suit for ejectment of a person occupying land without title would lie before the Revenue Assistant. The arguments is liable to be rejected in as much as in the present case, plaintiff is not claiming ejectment, but is seeking declaration and cancellation of documents. Thus, there is a dispute with regard to title. It is undisputed that prior to execution of sale deed in favour of defendant no. 4 and 5, plaintiff is the recorded Page 18 owner of subject land. In the present case, plaintiff has sought cancellation of sale deed by virtue of which, the defendant no. 4 & 5 became the owner of the suit property. It is undisputed that the relief of cancellation of sale deed cannot be granted by Revenue Courts. It is also to be born in mind that Section 186 of the Delhi Land Reforms Act prescribes that in case a question is raised regarding the title then revenue court would frame an issue on the question of title and submit the record to the competent civil court. In view of this provision question of title cannot be adjudicated by the Revenue Court and the power lies only with the Civil Court.
29. Lastly it has to be seen whether land in question was being used as an agricultural land so as to fall within the meaning of land as described in Section 2(13) of the Delhi Land Reforms Act. In Ram Lubbaya Kapoor Vs. J.R.Chawla 1986 RLR 432, it was held that before it can be termed as "land" for the purpose of Delhi Land Reforms Act, 154 it must be held or occupied for purpose connected with agricultural, horticulture or animal husbandry and if the land is not used for said purposes, it ceases to be land for the purpose of Delhi Land Reforms Act, 1954. The plaintiff in its pleading had clearly stated that the said land was being used as a farm land. In suit no. 133/17 a local commissioner was appointed who gave his report which was exhibited as Ex.DW5/1 along with report photographs were filed. The bare perusal of the photograph would show that land was not being used for agricultural purposes as envisaged under Section 2 (13) of Page 19 the Delhi Land Reforms Act 1954. The same was being used as a farm land. It was argued that no reliance can be placed on the photograph as the court had not passed any order directing the Local Commissioner to take the same. The argument is liable to be rejected in as much no objection to the report of the Local Commissioner was filed.
30. The testimony of DW6 and DW7 cannot be believed because there is no material on record to prove that land was being ploughed or any seeds were sown. There is no evidence that any seeds or fertilizers were purchased or the produce was sold in open market. Moreover PW9 Anil Kumar Saxena has stated that his company was organising AGM upon the suit land. It that be so, there is no question that suit land was being used for agricultural purpose. It was argued that khasra entries and form P-5 are in respect of the defendants which shows that they are in cultivatory possession of the suit land. Khasra entries do not convey title as the same is only relevant for the purpose of paying land revenue and has nothing to do with ownership. Moreover the entries are of the year 2003-2004 which is subsequent to the filing of the suit and thus no reliance can be placed on the same. In view of the above said discussions, the provisions of Delhi Land Reforms Act are not applicable to the facts of the present case. Therefore, in the present case, it cannot be said that this court does not have jurisdiction. The issues are accordingly decided in favour of the plaintiff and against the defendant.
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31. ISSUE. 2:-
Whether the suit is not valued properly for the purposes of court fee and jurisdiction? OPD
32. The onus to prove this issue was upon the defendant. No arguments were address by the defendants on this issue. The counsel for defendant was unable to point out as to how the suit has not been properly valued. However in the written submissions so filed, it is stated that plaintiff in para no. 15 of the plaint has stated that the value of the suit property is 2 crores, however court fees has been paid on Rs. 13, 27,726/-. It is a case of the plaintiff that she is the owner and a fraud was played by the defendant. The plaintiff has valued the relief of cancellation on the consideration amount of sale deed and paid ad- voleram court fee therefore it cannot be said that the valuation of the plaintiff is bad in law or is based on an arbitrary figure. The issue is accordingly decided in favour of plaintiff and against the defendant.
33. Issue no. 3.
Whether the suit is bad for misjoinder of parties as averred in the written statement of defendant nos.1,4 & 5 and defendants nos.2 & 3? OPD
34. To onus to prove this issue upon the defendant. No arguments were addressed as to how the suit is bad for mis-joinder of parties. The issue is accordingly decided in favour of the plaintiff and against the defendant.
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35. Issue no. 5.
Whether there was a family settlement on 10.10.1993 between the plaintiff and her husband on the one hand and defendant nos. 1 to 3 and Smt. Kamal Prabha Jain on the other hand as alleged by the defendants, if so, to what effect? OPD
36. The onus to prove this issue was upon the defendant. Ld. Counsel for defendant nos.1,4 and 5 Sh. Sunil Chouhan has argued that the plaintiff does not dispute the signatures on the family settlement but have stated in the plaint that the stamp paper on which the authority letter and the family settlement were executed were lying unsigned in the Almirah and the same were misused by the defendant. He submits that once plaintiff had admitted the signatures on the document he cannot deny the contents of the document. Reliance has been placed on Section 91 and 92 of the Indian Evidence Act. Ld. Counsel Sh. A.K. Dey for defendant no. 2 and 3 has argued that the settlement so arrived is a simple settlement between the members of the family and not one sided He submits that perusal of the family settlement clearly reflects that the eldest son i.e. the husband of the plaintiff had made huge losses, the family got together and by virtue of the family settlement plaintiff relinquished his rights in the suit land. On the other hand counsel for the plaintiff submits that the family settlement cannot be relied upon as the defendant has not proved that Page 22 husband of the plaintiff was involved in Satta because of which he had incurred losses. He submits that authority letter cannot be clubbed with the family settlement. He submits that land of Ramesh Jain was adjacent to the land of Manju Jain, however, by virtue of the settlement the land of Manju Jain was usurped. Lastly, he has submitted that the said family settlement is an unregistered document and therefore, cannot be relied upon. In rebuttal counsel for the defendants have argued that an unregistered family settlement can be relied upon and has placed reliance upon the judgment of Kale Vs. Deputy Director Consolidation, AIR 1976 SC 807.
37. The Hon'ble Supreme Court in Kale (supra) in Para 10 has held that:
10. In other words to put the binding effect and the essentials of a family settlement in a concretized form, the matter may be educed into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
Page 23 (3) The family arrangements may be even oral in which case no registration is necessary; (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Section 17(1) (b)?) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinqushes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family Page 24 arrangement will be upheld, and the Courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.
38. In view of the above said judgment, it is clear that all kinds of family settlement need not necessarily require compulsory registration. In case, an oral family arrangement has been arrived at it can be later on reduced in writing for the purpose of record and in such an eventuality the same does not require compulsory registration under Section 17 of the Registration Act. Therefore, it is to be seen whether the family settlement Ex. PW3/D2 & Ex. DW1/1 is a document which contains the terms and recitals of family settlement or is a mere memorandum after the family settlement had already been made.
39. The stamp paper on which the said family settlement was prepared was purchased from Bombay. The family settlement records that talks were going on as Ramesh Jain had suffered huge losses in Satta. As a result of which to save the goodwill and reputation of the firm and family it was decided that the share of husband and wife in the property situated at Brijwasan is relinquished. The said condition was duly agreed by both husband and wife. The documents were Page 25 purportedly executed on 10.10.1993. The authority letter Ex. PW1/D4/ DW-1 /2 also shows that Manju Jain had agreed to give effect to the family settlement.
40. The said settlement does not record that it is an arrangement or a recital of an arrangement which had already been arrived at. By way of this settlement for the first time, the plaintiff and her husband are asked to relinquish their share in the property situated at Bijwasan. Undoubtedly, the said family settlement records that talks were going on, however no where it is stated that any agreement was arrived at by the members of the family prior to the family settlement dated 10.10.1993.
41. It was next contended before this court that Section 91 and 92 bars any oral evidence contrary to the contents of the documents.
42. As per Section 91 and 92 of the Evidence Act any oral disposition contrary to the written document cannot be looked into. However, as per the proviso (I) to Section 92 any fact may be proved which would invalidate any document, or which could entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, of consideration or mistake in fact of law. The proviso makes it abundantly clear that in case of fraud the fact can be proved which would invalidate the document.
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43. Therefore, it has to be seen whether any fraud was played or not. Plaintiff has admitted the signatures on both the documents but denied its contents. Heavy onus lay upon the plaintiff to show that fraud was played by the defendant. The story put forward by the plaintiff as per the plaint is that she had kept signed stamp documents in the almirah and from where these documents were stolen. The story put forward by the plaintiff is a cock and bull story and is totally unbelievable why would a person keep blank signed documents/stamp papers at a place where she is not residing. No date has been mentioned as to when the same were kept and when the same were stolen. There are only vague averments in this regard and specific details are lacking. If the documents were kept in the almirah, the moment dispute arose between the parties at the first given instance, plaintiff would have taken her documents. Therefore, this claim of the plaintiff is only a story which has been made to withhold true facts from this court. However, at the same time no reason has been mentioned as to why the plaintiff Manju Jain who was present when the said family settlement had taken place did not sign the family settlement and had executed a separate authority letter. The family settlement is written in Hindi whereas the authority letter is typed. If both the documents were executed simultaneously then it raises serious doubt as to why one is hand written and the other is typed. DW2 in his cross examination has clearly stated that family settlement was made in his presence and at that time Manju Jain was present. He also stated that family settlement Page 27 was executed at Bombay and same was in the hand writing of his father i.e. Manak Chand Jain. DW3 Manak Chand Jain in whose presence the family settlement was entered had stepped into witness box and had stated in his cross examination that he does not remember if the document for family settlement had been prepared by him. He could not remember the date of the family settlement but stated further that it was executed in March, 1993. He further stated that settlement was written at Bombay. He has also stated that he does not remember from where the papers for family settlement had been procured.
44. The testimony of DW2 and DW3 is contradictory in as much as DW3 who is the author of the family settlement had clearly stated that he could not remember whether the same was prepared by him or not. Also it is unimaginable that in case Manju Jain was present at the time of execution of the family settlement then what prevented the parties to the settlement to obtain her signatures on the settlement.
45. Nowhere in the written statement or the family settlement it has been stated as to what was the exact amount which was lost by the husband of the plaintiff in the Satta. DW1 has stated that in his cross examination that approximately husband of the plaintiff had lost a sum of Rs. 40 lacs and the entire money was paid and arranged by his father i.e. DW-3 and brother i.e. DW-2, DW-2 has refused to give details of the amounts given to set off the losses suffered by Ramesh Page 28 Jain. In his cross examination he has stated that amount was given by his father. The testimony of DW-3 is also very vague on this aspect. He does not remember the date, month and year when the payments were made, and according to him the total paid amount was Rs. 92,00,000/-. There is no consistency regarding the amount paid and the person by whom the amount was paid. If such huge amounts were paid at least, there should have been some consistency if not in respect of the amount, at least by the person through whom the payment was made, should have been clearly stated. The testimony of DW7 (DW 12) Surender Khosla cannot be relied upon to prove that the husband of the plaintiff was indulging in Satta as nowhere in the written statement it has been stated that husband of the plaintiff had incurred losses to the tune of Rs. 40,00,000/- (Rupees forty Lacs). The testimony of DW7 (DW 12) is clearly an afterthought and thus liable to be rejected in totto. It is unconscionable that defendants would not know or remember it , as it was the basis of family settlement.
46. It is not the case of the defendant in their written statement that it was a memorandum of settlement, it is their own case that it was a family settlement. Even otherwise from the perusal of the family settlement it is clear that plaintiff and her husband had relinquished their rights in the suit property for the first time, therefore in the opinion of this court and in view of the judgment of Kale (Supra) the documents required compulsory registration which was not done and hence, the document cannot be read in evidence. In view of the Page 29 above discussion the existence of the family settlement is seriously questionable. Even assuming for the sake of arguments that any such settlement took place the same is unregistered document. Therefore, on preponderance of probabilities the defendant have failed to prove that any such family settlement was arrived at.
47. It was vehemently argued by ld counsel for the defendants that plaintiff was not the owner of the land, since she had not paid the consideration amount nor had sufficient means to pay. The arguments appears to be attractive at the first sight, however is self contradictory in as much as it was projected before the court that suit property was purchased out of joint funds. If the property was purchased from joint funds then what was the need of family settlement when plaintiff is asked to relinquish her rights. The property stood in the name of the plaintiff and it was her own property. It was to be treated as her self acquired property. Secondly Section 4 of the Benami Transactions (Prohibition) Act, 1998 bars the defendant from raising this plea. The Hon'ble Delhi High Court in Lalsa Prasad Singh Vs. Chanderwala & Anr. 2017 (8) A.D. (Delhi) 653 has held that:-
"It is apparent that as per clause (1) of Section 4 of BTA, no suit to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie on the plea that the property is held benami, with the exception that where the person, in Page 30 whose name the property is held, is a 'coparcener' in the Hindu Undivided Family and the property is held for the benefit of the coparceners of the property or where the person in whose name the property is held is a trustee or stands in a fiduciary capacity to another.
48. In view of the law it is clear that defendant cannot challenge the title of the plaintiff except if they are covered under the exception. However there are no pleadings to this effect. The issue is accordingly decided against the defendant and in favour of the plaintiff.
49. Issues no. 6 :
Whether the plaintiff appointed defendant no. 3 as her attorney vide power of attorney dated 28.5.1998 to execute the sale deeds in favour of defendant nos. 4 & 5, if so, to what effect? OPD
50. The onus to prove this issue is upon the defendant. It is the case of the plaintiff that she had never granted any authority in favour of Praveen Jain and had never executed any GPA. Ld. Counsel for the plaintiff has argued that GPA dated 28.05.1998 which has been exhibited as Ex. PW1/6, Ex. PW1/D15 A and Ex. PW1/D15B is forged document. He submits that stamp paper is dated 28.05.1998 shown to have been executed in Mumbai but notarized in Delhi on the same day.
Page 31 He therefore, submits that this in itself shows that the said GPA is a forged and fabricated document and therefore, any sale deed which has been executed pursuant to alleged GPA are liable to be canceled.
51. On the other hand, Sh. Sunil Chauhan Ld. Counsel for the defendant has argued that pursuant to the family settlement GPA was executed by the plaintiff in favour of Parveen Jain and not only a GPA there were five NOCs given by the plaintiff for transferring the land in favour of the companies. Sh. A.K.Dey has argued that the entire transaction has to be seen as a whole, trail of events points out to happening of an event and even if Power of Attorney is missing the sale deeds cannot be termed as fraudulent. In rebuttal Ld. Counsel for the plaintiff has argued that FSL report Ex. DW1/20 (Exhibited in Civil Suit no. 133/17 titled as Praveen Jain Vs. Manju Jain) clearly shows that the said GPA does not bear the signatures of the plaintiff.
52. The Power of Attorney/GPA has been exhibited as PW1/6 admittedly original Power of Attorney has not been placed on record. It is the case of the defendant that the said Power of Attorney was taken back by the plaintiff from her mother in law. The mother of the defendants i.e. Smt. Kamal Prabha Jain was never examined as a witness. She was the best person who could depose that GPA was taken back by the plaintiff. In fact defendant had got their evidence opened only for the purpose of examination of Smt. Kamal Prabha Jain, but subsequently failed to produce her and hence adverse Page 32 inference ought to be drawn against the defendant as they failed to produce best evidence. There is yet another reason to disbelieve the story of the defendant. No date, month and year is mentioned by them as to when the alleged GPA was taken by the plaintiff from her mother in law. The entire story of the defendant put forward is bogus and is malafide.
53. The Sale deeds were executed pursuance to the Power of Attorney u/s 102 of the Evidence Act the onus was upon the defendant to prove that any such Power of Attorney was executed. Ex. PW1/6 is the photocopy of the Power of Attorney purportedly bearing signatures of the plaintiff. The stamp paper on which the said power of attorney has been executed shows that the same was purchased in Delhi on 27.5.1998 and executed in Mumbai on 28.5.1998. The sale deeds under challenge i.e. P-1 to P-5 records that the same have been notarized in Delhi. Ex. PW 1/6 also shows that it have been attested and notarized in Delhi on 28.5.1998. There is no explanation offered by the defendant as to how the Power of Attorney which was executed in Mumbai was notarized in Delhi on the very same day i.e. 28.05.1998. Even if the defendants were not in possession of the original GPA they have made no efforts to summon the attesting witness R.R.Sharma who was resident of Gurgaon. The FSL report clearly shows that the Power of Attorney does not bear the signatures of plaintiff although the said opinion is on the basis of a photocopy, in addition to other circumstances would certainly carry some weight. The evidence in Page 33 civil cases has to be appreciated on the basis of the pre-ponderance of probabilities. Thus, on the basis of preponderance of probabilities it is clear that the Power of Attorney was never executed by the plaintiff, and , hence it is a forged and fabricated document. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
54. ISSUE NO. 7:-
Whether the five sales stated to have been executed by defendant no. 3 as attorney of the plaintiff in favour of defendants nos. 4 & 5 for Rs. 13,47,000/- are fraudulent transactions as she neither sold nor consented to sell her property and no money was paid for the sale deeds? OPP
55. The onus to prove this issue was upon the plaintiff. Sale deed executed pursuant to the said Power of Attorney is non-est. It was argued by the ld counsel for defendant that the entire transaction has to be seen as a whole and the family settlement has to be taken as a whole. The argument is liable to be rejected because neither the Power of Attorney nor the Sale deed records about the existence of any family settlement pursuant to which the Power of Attorney and Sale deed were executed. The sale deed records that NOC has been obtained from ADM concerned. However, none of the original of NOCs have been placed on record. The NOCs were submitted with the ADM for obtaining its no objection. Neither the NOC is there with the sale deed nor it is available with the office of ADM. A photocopy was placed Page 34 on record which are dated 15.3.1998 but neither they bear the stamp of the company nor any resolution has been placed on record which could authorise Manak Chand Jain to sign those NOCs on behalf of the company.
56. The sale deed also record that consideration amount has been paid at the time of registration of the Sale deed without even mentioning the cheque no. or the details thereof. In Para 16 of the plaint it has been specifically pleaded as to how the money has been rotated through the accounts. In the written statement filed by defendant no.1,4 and 5 there is bare denial and placed the onus on defendant no.2 and 3. In the written statement filed by defendant no.2 and 3 there is simplicitor denial. PW-8, has proved the statement of account of Luhadia Properties (P) Ltd, for the period 25.3.1998 to 31.12.1999 and the same was exhibited as Ex. PW 8/1, statement of account for Luhadia Developers (P) Ltd. for the period 25.3.1998 to 31.12.1999 was exhibited as Ex. PW 8/2; statement of account of Manju Jain for the period 18.01.1996 to 31.12.1999 Ex. PW 8/3; statement of account of Nirmal Jain for the period 12.01.1996 to 31.12.1999 Ex. PW 8/4; statement of account of Mrs Ranjana Jain for the period 7.2.1996 to 31.12.1999 was Ex. PW 8/5. PW9 has proved the statement of account in respect of Praveen Jain Metal Industries for the year 1996 to 1999. Perusal of Ex. PW8/1 shows that a sum of Rs.1,00,000/- was paid to the plaintiff on 20.5.1998 vide cheque no. 588703, the alleged sale deed was executed on 3.6.1998. It is not Page 35 clear as to why such an amount was paid to plaintiff almost 15 days prior to the execution of sale deed. There was no agreement of sale, executed prior to execution of sale deed. There are no cheque number mentioned in the sale deed. Moreover it is the consistent stand of the defendant no.2 and 3 that plaintiff and her husband had relinquished their right on account of loss suffered by the husband of plaintiff. If that is there case, then what was the reason that such an amount was paid to plaintiff, there is no explanation from the side of defendant no.2 and 3 as to why she was paid consideration amount when it is their own case that she had relinquished her right and giver power of attorney in favour of Praveen Jain.
57. There is yet another reason to come to this conclusion. Perusal of Ex. PW8/3 shows that Manju Jain had received a sum of Rs.3 lakh on 2.5.1998 through transfer from A/c No. 2106 which is the account of Luhadia Developers, if this is the amount towards sale consideration then why at all plaintiff would transfer the amount in favour of Praveen Metal Industries and that to within two days. It is also relevant to note that other transactions have also been done in a similar manner. No prudent person would transfer the entire consideration amount in the account of partnership firm which was otherwise her own money and that to within one or two days of receipt. This only shows that all three transactions were sham transactions. It appears that defendant no. 3 had misused the cheque of Ms. Manju Jain and no where it has been explained as to how he came in power and possession of these Page 36 cheques. The Sale deed appears to be a bogus and were executed in order to defeat the right of the plaintiff and as such the five sale deeds which have been executed by defendant no. 3 as attorney of the plaintiff are nothing but sham and fraudulent transaction. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
58. ISSUE NO. 8.
Whether the plaintiff is entitled to seek a declaration and cancellation of documents as prayed for?
59. Plaintiff has sought declaration and cancellation. As per the prayer made in the plaint plaintiff is seeking declaration that not only she is the owner but also in possession of the suit property. She has further sought cancellation of the documents. In view of my findings on issue no. 6 and 7 the five sale deeds Ex.P-1 to Ex.P-5 are required to be cancelled and as such are cancelled.
60. In so far as the relief of declaration of possession is concerned Ld. Counsel for the plaintiff has placed reliance upon the judgment of Anathula Sudhakar Vs. P. Bucchi Reddy (dead) by Lrs & Ors. (2008) 4 SCC 594.
61. On the other hand Ld. Counsel for the defendant has argued that plaintiff from day one knew that they are not in possession of the suit property and despite that they have not sought the relief of Page 37 possession, therefore, such type of declaration cannot be granted in view of Section 34 of the Specific Relief Act, 1963.
62. In Anathula (Supra) in Para 17 (a) it was held that:-
when a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession with or without a consequential injunction is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession , he has to sue for possession with a consequential injunction"
63. In M.K.Rappai & Ors. Vs. John & Ors 1969 2 SCC 590 it was held that:
A suit for a bare declaration of right without further relief for possession and other reliefs as the facts and circumstance would require is not supportable.
64. In Vinay Krishna Vs. Keshav Chandra & Anr. 1993 Supp (3) SCC 129 in Para 15 it was observed:
The plea of permissive possession is not stated anywhere in the plaint. Therefore we cannot permit at this stage such a plea to be raised. In Md. Aftabuddin Khan case (supra) what was held is to the following effect. (AIR p.75 Para 15) Page 38
15. "Long arguments had been advanced before us that a suit merely for declaratory relief when the plaintiffs were out of possession was not maintainable. Reliance has been placed on the provision of Section 34 of the Specific Relief Act while Mr. Dutta contended that the said bar applied to the suit, Mr. Mahapatra for the respondent claimed that it was not a suit covered by Section 34 of the Specific Relief Act. It is true that the plaintiffs had alleged that they were still in possession not withstanding the alienation. The court, however, found that plaintiffs were not in possession.
Undoubtedly, plaintiffs were obliged to ask for recovery of possession in order to have an effective decree. Mr. Mahapatra's contention that the bar of Section 34 of the Specific Relief Act would not arise when in the plaint there is an assertion that possession is with plaintiff though as a fact it is not, does not appeal to us as a sound proposition of law".
65. In Para 16 it was held that :
Merely because the plaint says in the prayer such other relief be granted to the plaintiff it does not mean that without a specific plea for possession and disregarding bar u/s 42 (proviso) of the Specific Page 39 Relief Act, the suit could be decreed even with reference to the portions of which the plaintiff has been in possession.
66. It is to be noted that Section 42 of Specific Relief Act, 1877 is paramateria the same as Section 34 of the Specific Relief Act 1963.
67. In Union of India Vs. Ibrahimuddin 2012 8 SCC 148 the Hon'ble Supreme Court has held that:
"suit for declaration of title of ownership without seeking possession is barred under section 34 of the Act as admittedly the plaintiff were not in possession".
68. Ld. counsel for the plaintiff has argued that it is a vacant piece of land and possession follows title. I am afraid that this is not a position on the facts of the present case. Plaintiff in her cross examination has categorically admitted that suit property is a common chunk of land which has a boundary wall that has a gate installed. Similarly, the husband of the plaintiff i.e. PW3 has also admitted that the entire land is surrounded by common boundary wall. It is an undisputed fact that the suit land is being used as a farm land and not as vacant land. PW- 1 in her cross examination has admitted that in the connected suit local commissioner was appointed by the court who gave his report wherein it is mentioned that the possession of the entire land is in possession of Page 40 Parveen Jain and his family members. She also admitted that no objection was filed against the said report. She also admitted that there is only one gate for entrance and exit and she is in possession of one of the keys, however, she could not place on records those keys.
69. It was argued by the ld counsel for plaintiff that the testimony of PW4, clearly shows that plaintiff was in possession of suit property as the telephone connection stood in her name. The testimony of PW4 does not further the cause of plaintiff to show that she was in possession. PW4 has stated that there was a telephone connection on the suit property in favour of the plaintiff but has stated that the same was disconnected in December 2000. If plaintiff was in possession, then under no circumstances she would have allowed it to be disconnected. On the contrary defendant by way of evidence has proved that they are in exclusive possession of the suit property. The testimony of DW9 and DW10 clearly shows that Parveen Jain is the member of Pushpanjali Farms Association and which has never been objected to by the plaintiff. In the written statement it was clearly stated that plaintiff is not in possession of the suit property. Therefore it was incumbent upon the plaintiff to have amended the suit and seek relief of possession. It is not a vacant land and the plaintiffs are also not in possession of the same. It was incumbent upon the plaintiffs to seek possession. In the absence of same bar under section 34 of the Specific Relief Act would clearly operate. In fact plaintiff from day one knew that they are not in actual physical possession. It is for this Page 41 reason that the relief sought by them is "owner in possession" and not simplicitor declaration that she is the owner. It is the case of clever drafting this court fails to understand as to why such a relief was not sought. The only irresistible conclusion which can be drawn is that plaintiff did not want to pay the court fee on the market price of land. Moreover the relief of declaration is a discretionary relief. Plaintiff has also not come to the court with clean hands. The story of blank documents being used by the defendant is completely unreliable and unrealistic. She has failed to plead the circumstances under which the documents were in power and possession of the defendant. It appears that true facts were withheld from the court for the reasons best known to the plaintiff. At the same time, defendant have also not been able to prove the execution of family settlement and GPA by the plaintiff. Thus, in so far relief of declaration is concerned the same cannot be granted to the plaintiff. Accordingly this issue is partly decided in favour of the plaintiff and partly in favour of the defendant. 70. ISSUE NO. 9
71. Relief
72. In view of my above findings, the five sale deeds i.e. executed on 3.6.1998 , registered vide registration no. 1654 in Addl. Book No. 1 Vol. No. 114 at pages 95 to 104,in favour of Luhadia Properties, executed on 3.6.1998 , registered vide registration no. 1655 in Addl. Book No. 1 Vol. No. 114 at pages 105 to 114 in favour of Luhadia Developers Pvt. Ltd.; executed on 3.6.1998 , registered vide Page 42 registration no. 1656 in Addl. Book No. 1 Vol. No. 114 at pages 115 to 125 in favour of Luhadia Developers Pvt. Ltd.; executed on 3.6.1998 , registered vide registration no. 1671 in Addl. Book No. 1 Vol. No. 115 at pages 1 to 8 in favour of Luhadia Developers Pvt. Ltd., executed on 3.6.1998 , registered vide registration no. 1672 in Addl. Book No. 1 Vol. No. 115 at pages 9 to 18 in favour of Luhadia Developers Pvt. Ltd are liable to be cancelled. However, in view of my findings on Issue no. 8, plaintiff cannot be granted any declaration. Accordingly, the suit filed by plaintiff is partly decreed. Decree sheet be prepared accordingly.
73. Issues in suit no. 132/17 (10389/16)
74. Issue no. 1:
Whether the settlement arrived between the parties in view of the plea taken by the plaintiff in para no. 2 of the plaint, if so, its effect?
75. In view of my findings in issue no. 5 in suit no. 131/17 the present issue is decided against the plaintiff and in favour of the defendant.
76. Issue no. 2:-
Whether the suit is not maintainable in view of the preliminary para no. 1 and to of WS? OPD.
77. The onus to prove this issue was upon the defendant. It is the case of the defendant that the present suit is barred u/s 185 of the Delhi Land Reforms Act, however, Ld. Counsel for the defendant has Page 43 been unable to point out as to how the suit for permanent injunction is barred under the Delhi Land Reforms Act. The next objection in the written statement was that under the garb of injunction the plaintiff is seeking relief of declaration again the counsel for the defendant has not been able to point out as to how the plaintiffs are seeking declaration. The only relief sought in the present plaint is that the defendants should be restrained from interfering in the peaceful possession of the plaintiff. Accordingly, this issue is decided against the defendants and in favour of the plaintiff.
78. Issue no. 3.
Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD.
79. The onus to prove this issue was upon the defendant. It is a simplicitor suit for injunction. Plaintiff has valued the suit for purposes of court fee and jurisdiction at Rs. 7,50,000/- and has paid advolrem court fee. The defendant has been unable to show as to what should have been the exact value of the suit. In the absence of any proof the issue is decided in favour of the plaintiff and against the defendant.
80. Issue no. 4.
Whether the plaint is not accordance with the provisions of order 6 and 7 CPC, if so, its effect? OPD.
81. The onus to prove this issue was upon the defendant. It is Page 44 argued that plaintiff could not have filed the present suit as they are not the owners. The plaint has been filed by Manak Chand Jain, Kamal Prabha Jain, Nirmal Jain and Parveen Jain. As per the provisions of Order 6 Rule 7 CPC no pleadings shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact in consistence with the previous pleadings. Counsel for the defendant has not been able to point out as to which pleading is inconsistent with the other pleading. Accordingly this issue is decided in favour of the plaintiff and against the defendant.
82. Issue no. 5:
Whether the suit is within time?
83. The onus to prove this issue was upon the plaintiff. It is stated in para 12 of the plaint that the plaintiffs were threatened by the defendant on 12.01.2000 and the present suit was filed on 19.01.2000. Therefore it cannot be said that the suit is barred by law of limitation, hence this issue is decided in favour of the plaintiff and against the defendant.
84. Issue no. 6 Whether the plaintiff is entitled for the relief claimed?
85. It was alleged by the plaintiff that on 12.01.2000 defendant visited the suit property along with 2-3 other persons. It is not the case of the plaintiff that they are residing there and had personally seen the defendant visiting the property. In fact, neither PW-7 nor PW-10 says Page 45 that they had seen defendant or any other person visiting the suit property on 12.01.2000. PW7 has only stated that in the end of April 2003, 4-5 persons had come. This in itself shows that only for delaying the adjudication of the suit , present suit for injunction was filed. Thus there was no real threat of dispossession. Hence this issue is decided in favour of defendant and against the plaintiff.
86. ISSUE NO.7
87. Relief
88. In view of my findings on issue nos. 1 & 6, the suit of the plaintiff is liable to be dismissed. Decree sheet be prepared accordingly. No order as to costs.
89. Issues in suit no. 133/18
90. Issue no. 1.
Whether the plaintiff have no loucs standi to file the present suit? OPD.
91. The onus to prove this issue was upon the defendant. Present suit has been filed seeking permanent injunction in respect of land comprising in Khasra no. 193/1/1, 193/2/2, 193/2/2. As per the own case of the plaintiffs in the present case the said land was allegedly sold by defendant no. 1 to the company Luhadia Developers/Properties. Therefore, the suit should have been filed by the company through its Directors and not by individuals. Hence, plaintiffs have no locus standi to file the present suit. The issue is thus decided in favour of the defendant and against the plaintiffs.
Page 46
92. Issue no. 2:-
Whether the suit is bad for mis-joinder and non- joinder of parties? OPD.
93. The onus to prove this issue is upon the defendant. The company who was the owner of the suit property according to the case set up by the plaintiff was not made as a party to the present suit, hence the suit is bad for mis-joinder and non-joinder of necessary parties.
94. Issue no. 3:
Whether the suit is barred under section 41(h) of the specific Relief Act? OPD
95. Counsel for the defendant has not been able to point out as to what was the equal efficacious remedy available with the plaintiff. Issue is accordingly decided in favour of the plaintiff and against the defendant.
96. Issue no. 4:-
Whether the suit is barred under the provision of Section 185 of Land Reforms Act? OPD.
97. In view of my findings on issue no. 2 in suit no. 132/17 the issue is decided in favour of the plaintiff and decided against the defendant.
98. Issue no. 5:-
Whether the suit is not properly valued for the purposed of court fee and jurisdiction?
Page 47
99. In view of my findings on issue no. 3 in suit no. 132/17 the issue is decided in favour of the plaintiff and decided against the defendant.
100. Issues no. 6 Whether the plaintiff is entitled to a decree of permanent injunction as prayed for?
101. The onus to prove this issue was upon the plaintiff. It was the case of the plaintiff that they are the owner of the suit property by virtue of family settlement. I have already held that the family settlement cannot be relied upon. The entire case of the plaintiff in the present case rests upon the family settlement. The relief of injunction is a discretionary relief. Secondly there is no cause of action in favour of the plaintiff. It was alleged by the plaintiff that on 27.4.2003, 4-5 persons came on the spot and threatened PW7. However there was no real threat of dispossession. The plaintiff themselves did not want any action. No effort was made to get those 4-5 persons identified. There is no evidence as to at what time these 4-5 persons visited the spot. PW7 does not say that those 4-5 persons had come at the behest of the defendants. Hence I do not find any ground to grant any injunction in favour of the plaintiff and against the defendant. The issue is accordingly decided in favour of defendant and against the plaintiff.
102. ISSUE NO.7
103. Relief.
104. In view of my findings on issue no. 1 & 6 , suit of the plaintiff is liable to be dismissed.
Page 48
105. No order as to cost. Decree sheet be prepared accordingly.
106. Copy of the order be placed in the file of Suit no. 132/17 (10389/16) and 133/17( 12157/16)
107. All the three files be consigned to Record Room. Decree sheet be prepared separately.
Digitally signedby ANKUR JAIN
ANKUR Date:
Announced in the open court JAIN 2018.09.05
17:35:51
on 5th September, 2018 +0530
(Ankur Jain)
Addl. District Judge-10 (Central)
Tis Hazari: Delhi
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