Delhi District Court
Sh. Radhey Shyam vs Sh. Sita Ram on 26 April, 2016
IN THE COURT OF CIVIL JUDGE 07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Presiding Officer: Ms. AANCHAL, DJS
Civil Suit No. : 567/13
Unique ID No. : 02401C0586592010
Sh. Radhey Shyam
S/o Sh. Ram Kishan
R/o H. No. 154/6, Teliwara,
Sadar Bazar, Bharat Building
New Qutub Road, Delhi110006.
.......Plaintiff
vs.
1. Sh. Sita Ram
S/o Sh. Ram Kishan
R/o 154/6, Teliwara,
Sadar Bazar, Bharat Building
New Qutub Road, Delhi110006.
Also at :
4607, Baba Kartar Singh Road,
Gali Chaudhary Sunder Sing,
Arya Pura, Subzi Mandi,
Opp. Palace Cinema, Delhi6.
2. The Commissioner
Municipal Corp. of Delhi
Town Hall, Chandni Chowk,
Delhi110006.
....... Defendants
Date of Institution of suit : 22.12.2010
Date of Judgment : 26.04.2016
Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 1/16
JUDGMENT
(1) Vide this judgment, this court shall decide the aforesaid suit filed by plaintiff seeking following reliefs : (A) Declaration thereby declaring the documents obtained by defendant no.1 from plaintiff and other legal heirs and so called title documents showing title of defendant no.1 as null and void, illegal and untenable. (B) Permanent injunction thereby restraining defendant no.1 from interfering and creating hindrance in the peaceful use and occupation of property bearing no. 154/6, Teliwara, Sadar Bazar, Bharat Building, New Qutub Road, Delhi 6, as shown in red colour in site plan, attached with plaint (hereinafter called as the "suit property").
(C) Permanent injunction against defendant no.1 from selling, transferring, letting, alienating, mortgaging or creating third party interest in the suit property (D) Mandatory injunction thereby directing the defendant no.2 for mutating the suit property in favour of plaintiff no.1 and if already mutated, cancel the mutation made in favour of defendant no.1.
(2) In brief, the facts as pleaded in the plaint are following :
(a) The plaintiff and the defendant no. 1 are the real brothers. The mother of plaintiff and defendant no. 1, Smt. Maya Devi was the sole and absolute owner of the suit property which was purchased by her from the defendant no. 2 somewhere in the year 198081 through public auction held by the MCD. The mother of plaintiff died intestate in the year 1992 leaving behind four legal heirs i.e. Plaintiff, defendant no. 1, Sh. Mohan Lal (now deceased) and Man Singh and all the legal heirs become coowners of equal share in the suit property.
(b)After the death of Smt. Maya Devi somewhere in January or February 2001, the defendant no. 1 approached the plaintiff and asked him for putting his Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 2/16 signatures on some papers on the pretext of getting the suit property mutated in favour of all the legal heirs. As the defendant no. 1 is the real elder brother of the plaintiff, having faith upon him, plaintiff put his signature on the documents produced by the defendant no. 1 without going through the contents of said documents. After some days, the defendant no. 1 informed plaintiff that the suit property has already been mutated in favour of all the legal heirs and asked for paying his share in the expenses incurred for mutation. Accordingly, plaintiff paid his share in cash to the defendant no. 1 and since then under this bonafide impression plaintiff alongwith his family members were enjoying the possession of the suit property without any hindrance or disturbance. Since last few months, behavior of the defendant no. 1 was very rude as he was creating nuisance and was pickingup quarrels with the plaintiff and his family members without any rhyme and reason and as and when same was objected by the plaintiff and his family, defendant no. 1 said that he is the sole and absolute owner of the suit property and plaintiff has no right, title or interest in the suit property. Plaintiff taking these words seriously started making inquiry and was totally shocked and stunned to know that defendant no. 1 had applied for mutation of the suit property only in his favour for which he has obtained signatures from plaintiff and Mohan Lal on certain documents in the past on the pretext of getting the suit property mutated in favour of all the legal heirs. When said question was raised with the heirs of Sh. Mohan Lal, they did not respond to it which shows that defendant no. 1 and legal heirs of Sh. Mohan Lal have colluded with each other to grab lawful 1/4th share of the plaintiff in the suit property. When defendant no. 1 came to know that this fraud has come into the knowledge of the plaintiff, he in collusion with the legal heirs of Mohan lal started making efforts for disposing off the suit property with intend to deprive the plaintiff of his legitimate and lawful 1/4th share in suit property.
Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 3/16Plaintiff issued a legal notice dated 01.11.10 calling upon the defendant no. 1 not to dispose off or create third party interest in the suit property and further calling upon defendant no. 2 not to mutate the property in favour of Sita Ram and legal heirs of Mohan lal and if already mutated, then to cancel the same immediately. This notice was duly served upon the defendants through Regd. Post and UPC but neither any action was taken by defendant no.2 nor any reply was sent but defendant no. 1 issued a false and fabricated reply through his counsel and defendant no. 1 is also making efforts for disposing off the suit property and has been regularly visiting the suit property with prospective buyers.
(c)On 25.11.10, defendant no. 1 asked the plaintiff to vacate the suit property in abusive manner and on refusal by the plaintiff, he manhandled him and have threatened to sell the suit property to some other person.
(d)Further, the title documents in possession of defendant no.1 are showing the title on forged and fabricated documents since the property was purchased by the mother of plaintiff through auction held by MCD.
(e)On 02.12.10, defendant no. 1 has been showing the suit property to some prospective buyers. Plaintiff immediately interfered and apprised the prospective buyers about the fraud played by defendant no. 1 upon his brother and showed the copy of legal notice etc. and the prospective buyers left the suit property gaining such knowledge but defendant no. 1 hurled filthy abuses and threatened the plaintiff with dire consequences if he ever interferes in his deeds. Hence, the present suit.
(3) Defendant no. 1 filed the WS and objected the suit preliminarily on the grounds that the suit is barred by the provisions of Specific Relief Act and the plaintiff has no locus standi to file the present suit. It is denied that the suit property was purchased in the name of Maya Devi in the auction held by MCD. The plaintiff has been living with his family at H. No. 14, Rani Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 4/16 Awanti Bai Chowk, Pull Mithai, Delhi06 and kept himself away from the family of defendant no. 1 and he and deceased Man Singh never looked after their mother in the lifetime. Defendant no.1 and Mohan Lal were inducted as tenant in the suit property before 1978 alongwith their mother Maya Devi and tenancy was jointly in the name of defendant no. 1 and Mohan Lal @ 4.2 paisa per month and on 24.12.1981, defendant no. 1 and Mohan Lal purchased the suit property from owners namely (Ran Singh, Balbir Singh, Dharam Veer, Raj Mal, Jai Narayan, Smt. Shanti Devi and Chhanno Devi for a sum of Rs. 3,495/ on dated 24.12.1981 and the said total consideration amount was paid by the defendant no. 1 and his brother Mohan Lal to the said owners and the said owners have executed a receipt dated 24.12.1981 through Regd. Receipt with the SubRegistrar, Delhi vide dated 24.12.1981 in favour of defendant no. 1 and Mohan Lal. It is further submitted that not a single penny was contributed by plaintiff and their mother Maya Devi and any other person. Further, it is submitted that the mother of the defendant no. 1 was the housewife and old aged lady and due to love and affection, both the brother as well as defendant no. 1 and Mohan Lal got registered only GPA vide dated 28.12.1981 in the name of their mother Smt. Maya Devi, with the Sub Registrar, Kashmere Gate, Delhi. Further, it is submitted that Smt. Maya Devi executed GPA, Agreement to sell, Affidavit and Receipt in a sum of Rs. 5,000/ in favour of defendant no. 1 and Mohan Lal in respect of the suit property vide dated 18.11.1994, duly attested by Notary Public, Delhi. Smt. Maya Devi expired on 03.05.1999. It is further submitted that Mohan Lal lived alongwith defendant no. 1 till his last breath and his sons namely Babloo, Prem and Shanker never cared him in his lifetime and he also expired on 02.11.2006. In fact, Mohan Lal was not happy with their sons because they never looked after him in his time and defendant no. 1 and his family members always looked after Mohan Lal in his lifetime, so Mohan Lal Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 5/16 executed a GPA and Will vide dated17.12.2004 in respect of his share in the suit property in favour of defendant no. 1, duly attested by Notary Public. Since then, the defendant no. 1 has become the absolute owner of the suit property entirely. In fact, the plaintiff is neither the owner of 1/4 th share, as he has alleged in his plaint, nor in any possession of the suit property. In fact, the plaintiff never ever lived nor is presently living in the suit property. In fact, the defendant no. 1 has given the suit property on rent to Sh. Yogesh Saxena, S/o Sh. Brij Mohan Saxena @ Rs. 2,000/ per month and the said tenant has been paying the rent regularly to the defendant no. 1 in the capacity of landlord. The plaintiff, in any way, has no right, title or claim in the suit property. Further, the suit of the plaintiff is denied in totality and prayed to be dismissed.
(4) Defendant no. 2 filed the WS and objected the suit preliminarily on the ground that the suit is barred by the provisions of Specific Relief Act and the suit is barred u/S. 477/478 of DMC Act. It is stated that as per records, the property was mutated by the competent authority on the basis of Agreement to Sell dated 02.12.1981 executed by erstwhile owners in favour of Sh. Mohan Lal and Sita Ram Singh, both sons of Sh. Ram Krishan and property was never assessed in the name of Ms. Maya Devi, mother of the plaintiff. Further, on merits, the suit of the plaintiff is denied and the suit is prayed to be dismissed. (5) Plaintiff filed the replication to the Written Statements filed by the defendants wherein all the averments made by the defendants in their written statement are denied and averments made by him into the plaint are reiterated. (6) From the pleadings of the parties and hearing, following issues were framed vide order dated 02.05.12 passed by Ld. Predecessor of this Court:
1. Whether the plaintiff has no locus standi to file the present suit? OPD1
2. Whether the present suit is barred u/s 477/478 of the DMC Act? OPD2 Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 6/16
3. Whether the present suit is barred by the provisions of Specific Relief Act? OPD
4. Whether the plaintiff is entitled for a decree of declaration, as prayed? OPP
5. Whether the the plaintiff is entitled for a decree of permanent injunction, as prayed? OPP
6. Whether the plaintiff is entitled for a decree of mandatory injunction, as prayed? OPP
7. Relief.
(7) In order to substantiate his case, plaintiff examined himself as PW1, Smt. Bimla as PW2 and Mr. Bablu as PW3 and they relied upon the following documents :
1. Copy of site plan as Ex. PW1/1.
2. Copy of legal notice as Ex. PW1/2.
3. Postal receipts as Ex. PW1/3 (Colly).
(8) On the other hand, defendant examined himself as DW1, Sh. Yogesh Saxena as DW2 and Sh. R.B. Tomar as DW3 and they relied upon the following documents :
1. The rent receipt as Ex. DW1/1.
2. Receipt as Ex. DW1/2.
3. GPA as Ex. DW1/3.
4. Agreement to sell as Ex. DW1/4.
5. Receipt as Ex. DW1/5.
6. Death certificate of Smt. Maya Devi as Ex. DW1/6.
7. House tax receipt as Ex. DW1/7.
8. Copy of ration card as Ex. DW1/8.
9. Electricity bill as Ex. DW1/9.
10. Water bill as Ex. DW1/10.
11. Voter I. Card as Ex. DW1/11.
12. Copy of site plan as Ex. DW1/12.
(all original seen and returned).
13. Assessment order dated 28.02.2001 as Ex. DW3/1.
(9) Final arguments are heard and record is perused carefully. Now the issuewise findings of this court are as under : ISSUE No. 1 Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 7/16 "Whether the plaintiff has no locus standi to file the present suit? OPD1"
The burden to prove this issue lies upon the defendant no. 1. It is argued on behalf of defendant no. 1 that the plaintiff has not produced any evidence to substantiate the fact the suit property was purchased by his mother from MCD on auction, therefore, no right, title or interest can be deemed to devolve upon plaintiff after the death of his mother and it proves that the plaintiff has no locus standi to file the present suit. On the contrary, it is contended on behalf of the plaintiff that since the burden lies upon defendant no. 1 to prove the present issue, it is for defendant no. 1 to prove the contrary, as pleaded by him in his WS that the property is owned by him but since no registered sale deed has been produced by defendant no. 1 and record produced by Sh. R.B. Tomar DW3 from NDMC show that suit property has been mutated on the basis of an Agreement to sell deed dated 02.12.1981 which is contrary to the case of the defendant no. 1 of having purchased the same from her mother on 18.11.1994, the defence of defendant no. 1 is established as not probable and ownership of mother and consequent devolution of share upon plaintiff should be inferred and defendant no. 1 should be held as unable to prove the present issue in his favour.
This court has given a thoughtful consideration to the contentions made by the parties. Examination of Written Statement and the evidence produced on record show that it is the admitted case of the defendant no. 1 that there exists only an unregistered notarized agreement to sell, Receipt and GPA, all dated 18.11.1994 purported to be executed by his mother Ms. Maya Devi favouring him and his brother Sh. Mohan Lal in respect of the suit property which is admittedly worth more than Rs. 100/. Sec. 17 of The Registration Act, 1908 requires the mandatory registration of the documents by which the right, title or interest in respect of such immovable property is created/declared/assigned and Section49 Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 8/16 of The Registration Act, 1908 provides that such unregistered document shall not affect the rights of the parties in respect of the immovable property. In SLP (C) no. 13917/ 2009 titled as "Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr." decided on 11.10.11, Hon'ble Supreme Court of India has also observed that as under: "15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property."
Furthermore, the defendant No.1 has himself examined Sh R.B. Tomar as DW3 and he has produced copy of agreement to sell dated 02.12.1981 purportedly executed by Sh. Ran Singh, Sh. Balbir Singh, Dharam Vir, Raj Mal and Jai Narain, Smt. Shanti Devi, Virender, Channo Devi through her attorney Sh. Pratap Singh in favour of Sh. Mohan Lal and defendant no. 1 which raises doubt Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 9/16 as to the probability of execution of further documents dated 18.11.1994 by Ms. Maya Devi in favour of defendant No.1 and Mohan Lal.
Therefore, considering the pronouncement of Hon'ble Apex Court, requirement of law of registration of document conferring ownership and doubtful existence and execution of documents dated 18.11.1994 in favour of the defendant no. 1, this Court is in agreement with the contention made on behalf of the plaintiff that defendant no. 1 has failed to establish that he is the owner of the suit property. But it cannot be overlooked that though the burden of proof as to the particular fact lies on that person who wishes the Court to believe its existence, the burden of proof as a matter of adducing evidence which is called as onus, keeps on shifting during the trial and though the form of issue may cast the burden on the defendant, it could not affect the burden of proof on pleadings which is on the plaintiff. Therefore, before deciding this issue and considering whether the defendant no. 1 has succeeded to dislodge the claim of the plaintiff and to prove his case, it has to be analyzed and appreciated whether the plaintiff has established his case to the extent when defendant may be required to disprove the existence of the fact asserted by the plaintiff and when in the absence of the contrary evidence, the plaintiff may be held to have locus to file the suit. Hence, in the opinion of this Court, the plaintiff must prove that he has right, title and interest in the property by producing cogent evidence on record to seek the decision of the issue under consideration in his favour. Reliance in this regard can be placed upon the decision of Hon'ble Apex Court in "Subhra Mukharjee vs. Bharat Cooking Coal Ltd." AIR 2000 SC 1203 and "Rangammal vs. Kuppuswami & Anr." (2011) 12 SCC 220.
In the present suit, the plaintiff has claimed declaration of documents obtained by defendant no. 1 and document showing title of defendant no. 1 as null and void and mandatory injunction against defendant no. 2 thereby directing it to mutate the suit property in his name and if it is already mutated, Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 10/16 then to cancel the mutation favouring defendant no. 1. These two reliefs are clearly based upon the title of the plaintiff qua the suit property. So far as the other reliefs are concerned, these are based upon the lawful possession of the plaintiff in the suit property. Now, this Court proceeds to examine whether plaintiff has succeeded to establish his ownership and possession qua the suit property against the defendant no. 1.
It is pleaded by the plaintiff that the suit property was owned by his mother having purchased the same from MCD in public auction somewhere in 1981. The plaintiff has not produced any document on the record to show the title of her mothere derived from MCD in public auction. But during the course of arguments, it is emphasized on behalf of the plaintiff that defendant no. 1 has deliberately concealed the documents of ownership of Ms. Maya Devi, therefore, the requirement of proof of this fact by production of the original documents should be waived and an adverse inference against the defendant no. 1 should be drawn and since the defendant no. 1 has admitted to have purchased the property from his mother, Ms. Maya Devi should be deemed admitted as owner and consequently, devolution of share in suit property upon plaintiff should be inferred.
But this Court does not find force in such arguments for the following reasons :
1. In order to act upon an admission, it must be unequivocal, unambiguous and clear one. In the present case, the defendant no. 1 has not admitted the ownership of Ms. Maya Devi gained from MCD in public auction but he has pleaded that he with Mohan Lal paid the consideration money to last owners under whom they alongwith their mother were previously tenants and out of love and affection, only GPA was got executed in favour of Ms. Maya Devi who later on for a consideration, executed the purported documents of sale i.e. GPA, Agreement to sell, Affidavit and receipt on Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 11/16 18.11.1994 in their favour. So, it can be inferred that the defendant no. 1 has not admitted that Ms. Maya Devi was conferred the ownership qua the suit property by then owners in 1981 but the defendant no. 1 has only admitted the authority granted by then owners to their mother to do certain acts in general qua the suit property which included the execution of sale deed in respect of the suit property. Further, the factum of ownership of Ms. Maya Devi on the date of her death which is established from her Death Certificate Ex. DW1/6 being not rebutted at all by the plaintiff as 03.05.1999, also cannot be deemed admitted and the requirement of proof of this fact cannot be dispensed with.
2. During the trial, it has never been the case of the plaintiff that document of ownership of Ms. Maya Devi gained through public auction, is in the possession of defendant no. 1. So, dispensing with the requirement of proof of ownership by primary evidence i.e. by production of the original document, the secondary evidence cannot be looked into. Otherwise too, the plaintiff has also not summoned any witness or record from MCD to prove the existence of auction conferring title of ownership in favour of her mother. This fact is only deposed by him in his affidavit filed for evidence and the same fact is deposed by Ms. Bimla PW1 and Sh. Babloo PW3 in their affidavits but it is not the case of any of these witnesses that they had personally attended the public auction where this property was purchased by Ms. Maya Devi or they have ever seen such document. Therefore, none of these witnesses can be said as witnesses competent to depose about the ownership of Ms. Maya Devi in respect of the suit property and the mere oral deposition of these three plaintiff witnesses cannot be looked into as substantiating the fact of ownership of Ms. Maya Devi of the suit property in disregard to the provisions of Sec. 91 of Indian Evidence Act, 1872.
3. The plaintiff has never attempted to serve any notice to defendant Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 12/16 no. 1 to produce this document, if it is assumed to be in the possession of defendant no. 1, therefore, no adverse inference may be drawn against defendant no. 1.
4. The doubt is raised on behalf of plaintiff about the execution of agreement to sell dated 02.12.1981 stressing upon the cutting of name of "Ms. Maya Devi" and further typing the name of S/ Sh. Mohan Lal and Sita Ram but this document is not challenged as a whole which if read without correction, would lead to inference that Ms. Maya Devi did not purchase the suit property in auction which is the case of the plaintiff. On the contrary, the execution of this document does not find reference in the WS of defendant no.1. So the genuineness and authenticity of this document is not beyond doubt and on the basis of this unproved document, the title of suit property cannot be believed to be vesting in Ms. Maya Devi.
Therefore, from this discussion, this Court is of the firm view that the plaintiff has failed to establish that Ms. Maya Devi was the owner of the suit property and consequently, it cannot be inferred that any title in the suit property would devolve upon plaintiff on the death of Ms. Maya Devi, as per the law of succession.
Record further shows that the plaintiff has not filed any single document like election ICard, Ration Card, Letter addressing him or his family member, electricity bill, water bill, passbook etc. to substantiate the fact that he is in the possession of the suit property. Oral testimony of PW2 and PW3 to this fact is also of no assistance since the rule of best evidence prevails and in the absence of any documentary evidence of possession, the existence of which is the necessary consequence of long possession, as claimed by plaintiff, oral evidence cannot be believed and consequently, the claim of the plaintiff of being in the possession of the suit property for long, remain unproved. On the contrary, defendant no. 1 has produced house tax receipt Ex.DW1/7, ration card issued on Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 13/16 20.09.2005 Ex.DW1/8, electricity bill for the month of March, 2010 Ex.DW1/9, water bill dated 09.07.2009 Ex.DW1/10 and his election ICard issued on 19.06.1995 on record. All these documents show the suit property as the residential address of defendant no.1. Therefore, from these documents, long possession of defendant no.1 can be inferred. The possession is the nine point in law. Hence, weighing the evidence, it is established from the preponderance of probabilities that the defendant no.1 has been in the long term possession of the suit property rather than plaintiff.
From this discussion, it is held proved that the defendant no.1 has possessory title in respect of the suit property superior to that of the plaintiff and the plaintiff having failed ot prove any title and possession, has no locus standi to file the present suit against defendant no.1 and this issue is decided in favour of defendant no. 1 and against the plaintiff.
ISSUE No. 2"Whether the present suit is barred u/s 477/478 of the DMC Act? OPD2"
Onus to prove this issue lies upon the defendant no. 2. The substantial relief claimed against defendant no. 2 is mandatory injunction directing it to mutate the suit property in favour of defendant no. 1 and if already mutated to cancel the same in favour of defendant no. 1. The plaintiff has deposed that he had sent a legal notice Ex. PW1/2 through post which are substantiated with original postal receipt dated 03.11.2010 Ex. PW1/3. Neither, the plaintiff is crossexamined on behalf of defendant no. 2 nor any evidence to prove contrary to the same is produced by defendant no. 2. Therefore, there is no reason but to believe that the notice, as required under Sec. 477 of Municipal Corporation Act, 1957, has been left in the office of defendant no. 2 and the present suit is not barred for want of notice. Hence, the issue under consideration Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 14/16 is decided against the defendant no. 2 and in favour of the plaintiff.
ISSUE No. 3"Whether the present suit is barred by the provisions of Specific Relief Act? OPD"ISSUE No. 4
"Whether the plaintiff is entitled for a decree of declaration, as prayed? OPP"ISSUE No. 5
"Whether the the plaintiff is entitled for a decree of permanent injunction, as prayed? OPP"ISSUE No. 6
"Whether the plaintiff is entitled for a decree of mandatory injunction, as prayed? OPP"
While deciding the issue no. 1, this Court has held that plaintiff has failed to prove that he has any right, title and interest in the suit property and the claim of the plaintiff as to the possession of the suit property remain unproved and the defendant no.1 holds the possessory title in respect of the suit property superior to that of the plaintiff. Therefore, it can be held that plaintiff is neither entitled for declaration, as per Section34 of the Specific Relief Act nor mandatory injunction, as per Sec. 41(j) of the Specific Relief Act.
Hence, the issues are is decided in favour of defendant no. 1 and against the plaintiff.
ISSUE No. 7Relief In view of the decision of remaining issues, plaintiff is held entitled for no relief and the suit of the plaintiff is dismissed.
However, before parting with the file, it is noteworthy to observe Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 15/16 that assessment order dated 28.02.2001 has been made by defendant no.2 in favour of defendant no. 1 and Mohan Lal, on the basis of copy of agreement to sell dated 02.12.1981 purportedly executed by Sh. Ran Singh, Sh. Balbir Singh, Dharam Vir, Raj Mal and Jai Narain, Smt. Shanti Devi, Virender, Channo Devi through her attorney Sh. Pratap Singh in favour of Sh. Mohan Lal and defendant no. 1, though the admitted case of the defendant no. 1 is that he and Mohan Lal had paid the consideration for purchase of the suit property on 24.12.1981 through Regd. Receipt when registered GPA dated 28.12.1981 was executed in the name of their mother Ms. Maya Devi and thereafter, Ms. Maya Devi executed GPA, Agreement to sell, Affidavit and Receipt in favour of defendant no. 1 and Mohan Lal in respect of suit property on 18.11.1994 and thereafter, Mohan Lal had executed GPA and Will dated 17.12.2004 in respect of his share in favour of defendant no.1. Thereafter, he has deposed the same fact in his affidavit and produced the original GPA dated 18.11.1994, Agreement to Sell 18.11.1994 and Receipt dated 18.11.1994 in the Court, which collectively suggests that there should be no Agreement to Sell in favour of Mohan Lal and defendant no.1 on 02.12.1981 on the basis of which the property has been mutated in favour of Sh. Mohan Lal and defendant no.1. Therefore, this mutation is required to be reviewed and reconsidered and the same is subject matter of detailed enquiry by defendant no.2. Therefore, concerned Deputy Commissioner of defendant no.2 is requested to reconsider this mutation and conduct the detailed enquiry at his end on facts which led to this assessment order under the intimation to this Court. The copy of this judgment be also sent to the concerned Deputy Commissioner for necessary action.
Now, decree Sheet be prepared accordingly. Thereafter, file be consigned to Record Room.
Announced in Open Court on this Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 16/16 26th day of April, 2016 at 4 p.m. ( AANCHAL ) CIVIL JUDGE07 (CENTRAL) DELHI/ 26.04.2016 NK Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 17/16 CS No. 567/13 26.04.2016 Present : Plaintiff in person.
Defendant no.1 in person.
None for defendant no.2.
Vide separate judgment passed on even date, plaintiff is held entitled for no relief and the suit of the plaintiff is dismissed.
However, before parting with the file, it is noteworthy to observe that assessment order dated 28.02.2001 has been made by defendant no.2 in favour of defendant no. 1 and Mohan Lal, on the basis of copy of agreement to sell dated 02.12.1981 purportedly executed by Sh. Ran Singh, Sh. Balbir Singh, Dharam Vir, Raj Mal and Jai Narain, Smt. Shanti Devi, Virender, Channo Devi through her attorney Sh. Pratap Singh in favour of Sh. Mohan Lal and defendant no. 1, though the admitted case of the defendant no. 1 is that he and Mohan Lal had paid the consideration for purchase of the suit property on 24.12.1981 through Regd. Receipt when registered GPA dated 28.12.1981 was executed in the name of their mother Ms. Maya Devi and thereafter, Ms. Maya Devi executed GPA, Agreement to sell, Affidavit and Receipt in favour of defendant no. 1 and Mohan Lal in respect of suit property on 18.11.1994 and thereafter, Mohan Lal had executed GPA and Will dated 17.12.2004 in respect of his share in favour of defendant no.1. Thereafter, he has deposed the same fact in his affidavit and produced the original GPA dated 18.11.1994, Agreement to Sell 18.11.1994 and Receipt dated 18.11.1994 in the Court, which collectively suggests that there should be no Agreement to Sell in favour of Mohan Lal and defendant no.1 on 02.12.1981 on the basis of which the property has been mutated in favour of Sh. Mohan Lal and defendant no.1. Therefore, this mutation is required to be reviewed and reconsidered and the same is subject matter of detailed enquiry by defendant no.2. Therefore, concerned Deputy Commissioner of defendant no.2 is Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 18/16 requested to reconsider this mutation and conduct the detailed enquiry at his end on facts which led to this assessment order under the intimation to this Court. The copy of this judgment be also sent to the concerned Deputy Commissioner for necessary action.
Now, decree Sheet be prepared accordingly. Thereafter, file be consigned to Record Room.
(AANCHAL) Civil Judge07 (C) Delhi/26.04.2016 NK Sh. Radhey Shyam Vs. Sh. Sita Ram Suit No. 567/13 Page 19/16