Delhi District Court
Manjeet Singh (Counter Claim) vs Surjeet Singh on 18 September, 2024
CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh
CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim)
In the Court of Ms. Neetu Nagar, Judge Small Causes Court cum
Additional Senior Civil Judge cum Guardian Judge, South East
District, Saket Courts, New Delhi
Civil Suit No. : 1308/2022
CNR No. : DLSE03-002019-2022
And
Civil Suit No. : 1628/2022
CNR No. : DLSE03-002700-2022
In the matter of:
Surjeet Singh
R/o House No. 891, Ground Floor,
Sunlight Colony, Phase-II,
New Delhi-110014
...Plaintiff/Non-counter Claimant/Respondent
VERSUS
Manjeet Singh S/o Late Niranjan Singh
R/o House No. 891, First Floor,
Sunlight Colony, Phase-II,
New Delhi-110014 ...Defendant/Counter Claimant
*******
Date of Institution of Suit : 29.08.2022
Date of Institution of counter claim : 10.11.2022
Final arguments heard on : 27.08.2024
Judgment pronounced on : 18.09.2024
Digitally
(Neetu Nagar) signed by
NEETU
JSCC-ASCJ-GJ/South East NEETU NAGAR
Delhi: 18.09.2024 Page 1 of 50 NAGAR Date:
2024.09.18
16:41:25
+0530
CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh
CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim)
Decision of the Suit : Decreed
Decision of the Counter Claim : Dismissed
*******
SUIT FOR MANDATORY AND PERMANENT INJUNCTION
AND FOR RECOVERY OF DAMAGES AND OCCUPATION
CHARGES
*******
COUNTER CLAIM FILED FOR DECLARATION AND
PERMANENT INJUNCTION
*******
JUDGMENT
1. Vide this common judgment, I shall dispose of the suit filed by Sh. Surjeet Singh (hereinafter referred to as the "plaintiff") seeking mandatory and permanent injunction and recovery of damages and occupation charges from Sh. Manjeet Singh (hereinafter referred to as the defendant) and counter claim filed by Sh. Manjeet Singh (referred to as the "counter- claimant") against Sh. Surjeet Singh (referred to as the "non counter-claimant/respondent").
PLAINT (MAIN SUIT)
2. It is stated in the plaint that the father of the plaintiff and the defendant namely Sh. Niranjan Singh was an allottee of the property bearing No. 891 Sunlight Colony, New Delhi (hereinafter shall be referred as the "suit property"). The father of the parties Sh. Niranjan Singh died intestate. Thereafter, the suit Digitally (Neetu Nagar) signed by NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR NAGAR Date:
Delhi: 18.09.2024 Page 2 of 50 2024.09.18 16:41:37 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) property was inherited by his legal heirs i.e. Late Smt. Bimla Devi (Wife), Sh. Jitender Singh (Son), plaintiff (Son) and the Defendant (Son). It is averred that the defendant was major at the time of death of his father and therefore, it was agreed between the legal heirs of Late Sh. Niranjan Singh that the defendant being the major son will take the job of his late father in Delhi Development Authority on compassionate ground on the basis of No Objection by the other legal heirs and in lieu thereof he will relinquish his share in favor of the remaining legal heirs in respect of the suit property. Accordingly, the defendant joined the job of his late father in place of him and executed registered relinquishment deed dated 04.08.1989 in favour of Late Smt. Bimla Devi, Sh. Jitender Singh and the plaintiff. Hence, Late Smt. Bimla Devi, Sh. Jitender Singh and the plaintiff became owner of 1/3rd share each in the suit property. 2.1 It is averred that the defendant was not having any other place to reside and requested the plaintiff and Late Smt. Bimla Devi to reside on the First Floor of the suit property as a licensee. The defendant assured the plaintiff and Late Smt. Bimla Devi that he will vacate the suit property as and when the defendant will get suitable accommodation or when the same is required by the plaintiff and Late Smt. Bimla Devi. 2.2 It is further submitted that DDA had transferred/mutated the suit property in its record vide its letter (Neetu Nagar) NEETU JSCC-ASCJ-GJ/South East NAGAR Delhi: 18.09.2024 Page 3 of 50 Digitally signed by NEETU NAGAR Date: 2024.09.18 16:41:43 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) dated 15.03.1990 in the names of late Smt. Bimla Devi, Sh.
Jitender Singh (now deceased) and the plaintiff. It is averred that at the time of death of Sh. Niranjan Singh, the suit property was constructed up to the ground floor only. Thereafter, first floor, second floor and third floor have been constructed by the plaintiff and Late Smt. Bimla Devi, from their own funds and resources. As per the agreement on the basis of oral partition, Smt. Bimla Devi had been residing along with plaintiff on Ground floor portion and the First Floor portion had been permitted to be used on license basis by the defendant and Second floor has been in the use and possession of Sh. Jitender Singh and his family and the third floor with terrace has been a common property of Late Smt. Bimla Devi, Late Sh. Jitender Singh and the Plaintiff before the death of Smt. Bimla Devi. It is averred that the first floor belonged to Late Smt. Bimla Devi as per oral agreement but for the convenience, Smt. Bimla Devi had been residing with the plaintiff on the ground floor portion as the plaintiff and his family members only had been taking care of her in her old age and during her long illness as well as out of love and affection. Late Smt. Bimla Devi had bequeathed her 1/3 rd share in the suit property in favour of plaintiff by virtue of a Registered Will dated 02.02.2016, in sound mental capacity which has been brought to the knowledge of all the legal heirs in the presence of the other relatives. Late Smt. Bimla Devi died on Digitally signed by (Neetu Nagar) NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR NAGAR Date:
Delhi: 18.09.2024 Page 4 of 50 2024.09.18 16:41:49 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) 21/11/2021. The plaintiff thus has become owner in possession of 2/3rd share in the suit property.
2.3 It is claimed that plaintiff was in need of the First Floor as the family of the plaintiff is growing and requested the defendant to vacate the first floor of the suit property being the lawful owner thereof. The defendant sought some time to vacate the suit property in a month. It is averred that the plaintiff spent a sum of Rs. 4,00,000/- approx. for medication as well as special rights and other disposables for his mother and requested the defendant and other legal heirs to share the expenses but nobody came forward for the same. It is alleged that the defendant had refused to cooperate and sign the documents for the purpose of retrieval of Rs.3.50+ lacs lying in the bank account of Late Smt. Bimla Devi. It is further averred that despite several requests and reminders the defendant failed to vacate the First Floor of the suit property used and occupied by the defendant as licensee on one pretext or other. The defendant even threatened the plaintiff of dire consequences if the plaintiff forced the defendant to vacate the First Floor of suit property. The plaintiff was compelled to issue a legal notice dated 25.02.2022 thereby calling the defendant to vacate the first floor portion of the suit property which was duly served upon the defendant. However, the defendant instead of vacating the First Floor, replied to the said legal notice vaguely and without any real substance. The plaintiff Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.18 16:41:56 Delhi: 18.09.2024 Page 5 of 50 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) also got issued a rejoinder to the reply of legal notice through his counsel which was also served upon the defendant. However, the defendant did not respond to the same despite service. Hence, the instant suit.
SUMMONING OF DEFENDANT AND CHAIN OF SUBSEQUENT EVENTS
3. Upon receipt of the plaint, summons of the suit for settlement of issues were directed to be issued to the defendant vide order dated 30.08.2022. The defendant was duly served with the summons and he filed written statement on 12.10.2022 and counter claim on 10.11.2022.
FACTS OF COUNTER CLAIM 4.1 It is admitted in the counter claim that Late Sh. Niranjan Singh, i.e. the father of the counter claimant and the Respondent was the allottee of suit property vide allotment letter from Delhi Development Authority. It is also admitted that Sh. Niranjan Singh died intestate on 30.12.1987 and left behind his legal heirs i.e. wife namely Smt. Bimla Devi, the Counter Claimant and the respondent as well as one other son namely Sh. Jitender Singh (now deceased). It is averred that Late Sh. Niranjan Singh was employed with Delhi Development Authority, and after his demise the counter claimant got the job on compassionate ground in his place, since at the relevant time, the respondent and the other son namely Jitender Singh were Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
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4.2 It is asserted that upon assurance given by the mother of the counter claimant that the counter claimant would be given 1/3rd undivided share in the subject property by virtue of registered Will in favour of the counter claimant, the Counter claimant continued residing in the First Floor of the Subject property. Further, the upper floors i.e. Second and Third Floor were got constructed subsequently by the joint funds of the Counter claimant and the Late mother of the parties. The counter claimant had even availed a loan facility from Saini Co-operative Thrift & Credit Society Limited, Darya Ganj, Delhi in the year 2000-2001 for an amount of Rs. 35,000/- for the purpose of Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.18 Delhi: 18.09.2024 Page 7 of 50 16:42:09 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) construction.
4.3 It is stated that late Smt. Bimla Devi, mother of the parties used to get monthly pension from DDA and her medical bills would also get reimbursed from DDA. After the demise of Late Sh. Niranjan Singh, the Counter Claimant being the only earning member of the family, used to take care of the entire family including the Respondent, as the Respondent and the other brother namely Sh. Jitender Singh (now deceased) were minors at that time. Furthermore, the Counter Claimant also used to support Late Smt. Bimla Devi medically as well as in her day- to-day needs.
4.4 It is averred that the Respondent and his wife used to pick up unnecessary quarrels over petty issues and often used to misbehave not only with the Counter Claimant but also with the aged mother of the parties. It is asserted that Late Smt. Bimla Devi did not even appoint the Respondent as her nominee in her Bank Account etc. In pursuance of the assurance, late mother of the parties executed Will dated 14.06.2013 registered on 19.06.2013 in favour of the Counter Claimant thereby bequeathing her 1/3rd undivided share in the subject property in favour of the Counter Claimant.
4.5 It is claimed that the Respondent and his wife were having ill intention to oust the Counter Claimant from the suit property and hatched a conspiracy which culminated into Digitally signed by (Neetu Nagar) NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR Delhi: 18.09.2024 Page 8 of 50 NAGAR Date:
2024.09.18 16:42:14 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) execution of false and fabricated Will dated 02.02.2016 without her intention and knowledge to execute the same qua the suit property. It is averred that in the alleged Will dated 02.02.2016, it has been mentioned that it is First and Last Will of the Testator, however, Late Smt. Bimla Devi had already executed a Will dated 14.06.2013 in favour of the Defendant which was already in the knowledge of the respondent/plaintiff since he himself stood as one of the attesting witnesses to the alleged Will dated 14.06.2013. There is no averment qua the existence of earlier registered Will dated 14.06.2013 nor there is any averment qua the cancellation of the same. Further, it has been mentioned in the alleged Will dated 02.02.2016 that the subsequent floors in the said property have been got constructed by the funds of Late Smt. Bimla Devi, whereas the said floors have been got constructed out of the funds of Late Smt. Bimla Devi and the Counter Claimant himself. It is next averred that the counter-
claimant is legally entitled to retain possession of his 1/3rd undivided share in the subject property. 4.6 It is claimed that the respondent soon after the demise of Late Smt. Bimla Devi on 21.11.2021 has started causing harassment and interference in the peaceful enjoyment of the First Floor of the suit property by the counter claimant. Further, the respondent has openly threatened the counter claimant that he will sell out the suit property illegally and would Digitally (Neetu Nagar) signed by NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR NAGAR Date:
Delhi: 18.09.2024 Page 9 of 50 2024.09.18 16:42:19 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) also implicate the counter claimant and his wife into false and frivolous litigation. It is pleaded that the counter claimant is having separate electricity and water connection bill in his name qua the suit property. It is stated that Sh. Jitender Singh i.e. brother of the counter claimant has passed away in the month of November, 2018 leaving behind his wife and children and the respondent is also bent upon to oust the legal heirs of late Sh. Jitender Singh also from the suit property as his intention is to grab the entire suit property illegally. Hence, this counter claim.
WRITTEN STATEMENT IN MAIN SUIT
5. Written statement has been filed on behalf of the defendant wherein various preliminary objections were taken on the ground of lack of maintainability of the suit, concealment of facts, no cause of action, not properly valued etc. Similar pleadings as taken in counter claim have been made by the defendant, hence, contents thereof are not being reproduced for the sake of brevity. It was prayed for dismissal of the suit.
WRITTEN STATEMENT IN COUNTER CLAIM
6. Written statement was filed on behalf of the respondent to the counterclaim, taking therein various preliminary objections on the ground of not come to the court with clean hands; illegible documents; suppression of material facts; etc. It is pertinent to note that the written statement in the counter claim was on similar lines of plaint in the main suit filed Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.18 Delhi: 18.09.2024 Page 10 of 50 16:42:23 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) by the plaintiff and hence, contents thereof are not being reproduced.
6.1 Additionally, it is stated that the counter claimant played fraud upon their late mother and assured her that he will take care of her throughout life and so the mother of the counter claimant agreed to make a Will in his favour but as soon as the Will was made, the counter claimant changed his colour and threw the mother out of her portion of the property and the respondent took care of her thereafter. The mother of the parties realized her mistake and again executed a Will in the favour of the respondent which is the last will of the mother of the parties and hence, it prevails thereby making the Will in favour of the counter claimant as null and void. Rest of the contentions of the counter claim were denied in toto. It was prayed for dismissal of the counter claim.
REPLICATION IN MAIN SUIT
7. Replication was filed on behalf of the plaintiff wherein he denied the averments made in the written statement and reaffirmed the contents of the plaint. It is stated that the mother of the parties took care of the plaintiff and the other son and the defendant never cared for them.
REPLICATION IN COUNTER CLAIM Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
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8. Replication was filed on behalf of the counter claimant wherein he denied the averments made in the written statement of the respondent and reaffirmed the contents of the counter claim.
ISSUES FRAMED IN MAIN SUIT
9. On the basis of the pleadings of the parties, the following issues were framed in the suit vide order dated 19.04.2023:-
"(a) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for in the nature of directions to the defendant to vacate and hand over the suit property to the plaintiff ? OPP
(b) Whether the plaintiff is entitled to the relief of permanent injunction in the nature of restraint against the defendant from creation of any third party rights in the suit property? OPP
(c) Whether the plaintiff is entitled for recovery of damages/occupational charges to the tune of Rs.
10,000/- per month for continued illegal occupation of the suit property? OPP
(d) Relief. "
ISSUES FRAMED IN THE COUNTER CLAIM
10. On the basis of the pleadings of the parties, the following issues were framed in the counter claim vide order dated 19.04.2023:-
"(a) Whether the counter claimant is entitled to the relief of declaration to the effect that Will NEETU (Neetu Nagar) JSCC-ASCJ-GJ/South East NAGAR Delhi: 18.09.2024 Page 12 of 50 Digitally signed by NEETU NAGAR Date: 2024.09.18 16:42:36 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) dated 02.02.2016 registered on 04.02.2016 be declared as null and void? OPC
(b) Whether consequentially the counter claimant is entitled to the relief of permanent injunction as prayed for in the nature of restraint against the respondent from causing any obstruction or hindrance in the suit property? OPC
(c) Whether the counter claimant is entitled to the relief of permanent injunction in the nature of retraint against the respondent from creation of third party rights in the suit property on the basis of Will dated 02.02.2016? OPC
(d) Relief."
EVIDENCE OF PLAINTIFF
11. Plaintiff, in support of his case has examined himself as PW-1 who has placed on record his affidavit in evidence vide Ex.PW1/B and relied upon the following documents:
Sl. No. Exhibits/Mark Details of Documents
1. Ex. P-2 The relinquishment deed dated 04.08.1989.
2. Ex P-1 (colly) Copy of documents pertaining to mutation.
3. Ex. PW1/3 (OSR) Copy of Will dated 02.02.2016
4. Ex. P-3 (colly) Copy of legal notice, reply to legal notice and the rejoinder Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR NAGAR Date:
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5. Ex. PW1/A Present suit 11.1 Plaintiff has also examined Sh. Hardeep Singh as PW2 who has placed on record his affidavit in evidence vide Ex.PW2/A and relied upon the document i.e. Will dated 02.02.2016 already Ex. PW1/3. Plaintiff has next examined Mr. Ajeet Singh, official from the office of Sub-Registrar-V, Mehrauli, Delhi as PW-3 who has brought the original and certified copy of registered will dated 02.02.2016 and proved the same vide Ex. PW1/3. PW1, PW2 and PW3 were duly cross-
examined on behalf of the defendant. Thereafter, evidence on behalf of the plaintiff was closed vide order dated 15.09.2023.
EVIDENCE OF DEFENDANT/COUNTER CLAIMANT
12. It is pertinent to mention that vide order dated 26.10.2023 in the main suit, it was directed by the Learned Predecessor that the entire evidence led in the counter claim be read as defence evidence in the present suit. The defendant/counter claimant examined himself as CW-1 who has placed on record his affidavit in evidence vide Ex. CW1/1 and relied upon the following documents:-
Sl. Exhibits/Mark Details of Documents No. Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.18 Delhi: 18.09.2024 Page 14 of 50 16:42:49 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) 1 Ex. C-1 Copy of relinquishment deed.
2 Mark-A Copy of electricity and water connection bill.
3 Ex.CCW1/3 (OSR) Copy of loan paper pertaining to (Colly). Saini Cooperative Thrift and Credit Society Limited, Darya Ganj in the year 2000-2021 4 Ex. CCW1/4 (OSR). Copy of Will dated 14.06.2013 5 Ex. C-2 Copy of Will dated 02.02.2016 12.1 CW1 was duly cross-examined on behalf of the plaintiff. The defendant/counter claimant examined Sh. Surender Singh as CW-2 who tendered his evidence by way of affidavit vide Ex. CW2/A. CW-3 Sh. Karnail Singh tendered his evidence affidavit vide Ex. CW3/A. Mr. Ajeet Singh, official from the office of Sub-Registrar-V, Mehrauli, Delhi was examined as CW-4 who has brought the summoned record i.e. Will dated 14.06.2013 registered on 19.06.2013 as Ex. CCW1/4. CW-1 to CW-4 were duly cross examined by the counsel for the non-
counter claimant/plaintiff.
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CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh
CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim)
12.2 Thereafter, no witness has been examined on behalf
of the counter claimant/defendant and evidence on behalf of the counter claimant/defendant was closed vide order 22.07.2024.
12.3 No evidence was led in the counter claim by the plaintiff who preferred to adopt the evidence led on behalf of the plaintiff in the main suit as the evidence on behalf of the respondent in the counter claim. Same is also recorded in order- sheet dated 27.08.2024.
ARGUMENTS
13. This court has carefully perused the evidence on record in light of the pleadings of the parties and considered the submissions of the learned counsel for both the parties who have argued as per their respective cases. Hence, their arguments are not being reproduced for the sake of brevity and shall be dealt hereinafter.
APPRECIATION AND FINDINGS
14. The issues framed in main suit as well as in counter claim are adjudicated as under:-
Issues Framed in Main Suit "(a) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for in the nature of directions to the defendant to vacate and hand over the suit property to the plaintiff ? OPP NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by NEETU NAGAR Delhi: 18.09.2024 Page 16 of 50 Date: 2024.09.18 16:43:00 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim)
(b) Whether the plaintiff is entitled to the relief of permanent injunction in the nature of restraint against the defendant from creation of any third party rights in the suit property? OPP
(c) Whether the plaintiff is entitled for recovery of damages/occupational charges to the tune of Rs.
10,000/- per month for continued illegal occupation of the suit property? OPP Issues Framed in Counter Claim "(a) Whether the counter claimant is entitled to the relief of declaration to the effect that Will dated 02.02.2016 registered on 04.02.2016 be declared as null and void? OPC
(b) Whether consequentially the counter claimant is entitled to the relief of permanent injunction as prayed for in the nature of restraint against the respondent from causing any obstruction or hindrance in the suit property? OPC
(c) Whether the counter claimant is entitled to the relief of permanent injunction in the nature of retraint against the respondent from creation of third party rights in the suit property on the basis of Will dated 02.02.2016? OPC"
15. These issues are being taken up together as they are interconnected. The onus to prove issues no.(a) to (c) in the main suit was upon the plaintiff and that to prove issues no.(a) to (c) in the counter claim was placed on the counterclaimant.
Digitally
signed by
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NAGAR Date:
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CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim)
16. It is relevant here, before appreciation of evidence and deciding the issues, the position of law as settled is that the onus of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims on preponderance of probability against the defendant. As per the principles of Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is re- quired to affirmatively establish it. The Hon'ble Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI (2003) SLT 307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court ei- ther believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.
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CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim)
17. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the de- fendant to prove a fact to be true would start only when the au- thenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the bur- den of proving the facts rests on the party who substantially as- serts the affirmative issues.
18. Keeping the above legal position in mindset, let us proceed further.
19. Admittedly, the father of the parties to the present suit, Shri Niranjan Singh expired on 30.12.1987 and at that time, the plaintiff and the other brother namely Mr. Jitender Singh were minors. It is also an admitted fact that the defendant is the eldest brother. It is also not in dispute that the defendant was given the job on compassionate grounds on the demise of his fa- ther late Shri Niranjan Singh. The fact of execution of the regis- tered relinquishment deed dated 04.08.1989 Ex.P2 in favour of the other legal heirs of Shri Niranjan Singh by the defendant is also not disputed. Mutation Ex.P1 of the said registered relin- quishment deed in favour of the remaining legal heirs is also not disputed. Hence, it is clear that the plaintiff along with his mother Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
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20. It is urged on behalf of the defendant that the said relinquishment deed was executed only for mutation purposes, however, there seems to be no merit in the said argument of learned counsel of the defendant. Firstly, the said document is a registered document. Further, it stands admitted by the defendant himself that his mother also could have been appointed as a peon on compassionate ground and that she relinquished her right to be so appointed. Hence, the version of the defendant that the mother was not literate enough to be appointed on compassionate ground stands falsified as she was equally competent for appoint- ment although she relinquished the said right in favour of defen- dant and thereafter only the defendant has relinquished his rights in the suit property as he has got the appointment on compassion- ate ground else there was no reason for the defendant to relin- quish his right in the suit property in favour of the other legal heirs of Late Sh.Niranjan Singh. It was deposed by the defendant that he had to relinquish his rights in the suit property as his mother wanted to get the ownership of the property transferred in her name however, the testimony of the defendant in this regard is false as the suit property has been mutated in the name of the Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
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21. Admittedly, mother of the parties namely Smt. Bimla Devi, wife of Late Shri Niranjan Singh died on 21.11.2021.She has left behind registered Will dated 14.06.2013 according to which she bequeathed her immovable property only to defendant. Thus, it is claimed on the basis of the said will that the defendant is entitled to 1/3rd share in the suit property. Whereas, the plaintiff relied on registered will dated 02.02.2016 by dint of which late Smt. Bimla Devi bequeathed her immov- able property to the plaintiff. As shown above, indisputably,Late Smt.Bimla Devi had three legal heirs/sons i.e the plaintiff, defen- dant and late Sh.Jitender Singh. Clearly both the said registered wills have been executed by the mother of the parties to the suit namely late Smt. Bimla Devi. Both the wills are in English lan- guage. Hence, the plea of the defendant in this regard is unbeliev- able and not worthy of credence.
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22. The defendant has also filed counterclaim in order to challenge the will dated 02.02.2016 in favour of the plaintiff. It was urged that there are suspicious circumstances surrounding the said will and same is liable to be declared as null and void. The authenticity of the Will has been challenged on the following grounds:-
1. The plaintiff is the attesting witness to the earlier will dated 14.06.2013
2. Despite having knowledge of the earlier will, plaintiff got exe-
cuted the will dated 02.02.2016 on the pretext of taking the mother of the parties to the suit for medical treatment.
3. The will dated 02.02.2016 mentions therein that it is the first will executed by late Smt.Bimla Devi when it is not so.
4. The factum narrated in the will dated 02.02.2016 are also wrong with regard to construction of the upper floors.
5. No physical division of the properties by metes and bounds has ever been undertaken. The defendant has, therefore, asserted that the suit of the plaintiff is liable to be dismissed and the counter claim is liable to be allowed.
23. It, therefore, becomes pertinent in the present facts and circumstances to examine whether in fact, the Wills dated 14.06.2013 and 02.02.2016 were executed by Late Smt.Bimla Devi during her lifetime and whether the same are valid and gen- uine documents.
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24. An onerous duty is cast upon the court to unravel and decipher the true intent and import of the Will since, unlike other documents, the Will speaks from the death of the testator and the maker of the Will is never available for deposing about the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator.
25. Section 63 of Indian Succession Act, 1925 provides for execution of Will, which reads as follows:
" 63 . Execution of unprivileged wills - Every tes- tator, not being a soldier employed in an expedi- tion or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
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(c) The will shall be attested by two or more wit-
nesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the di- rection of the testator, or has received from the tes- tator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be neces- sary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
26. To prove the valid execution, the propounder of the Will has to prove - firstly, the Will was duly signed by the testa- tor or bears the affixation of his Mark; secondly, the Mark so af- fixed or the signatures of the testator should be so placed that it appears that it was intended to be executed by the Testator with a dispensing mind free from all extraneous influences; thirdly, it must be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the Will. The Will must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.
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27. In the case of H.Venkatachala Iyengar v. B.N. Thimmajamma and Others, AIR 1959 SC 443, the Hon'ble Apex Court emphasized that the Will is dissimilar from other docu- ments of conveyance, as it is produced before the court after the testator has departed from the world, and the testator is not avail- able to say that the Will is his own or it is not the same. This fac- tum introduces an element of solemnity to the decision where the Will propounded is proved to be the last will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will, is required to prove by satisfactory evidence that:
(i) the Will was signed by the testator: (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator un-
derstood the nature and effect of the dispositions; and (iv) that the testator had put his signature on the document of his own free will.
28. The Hon'ble Supreme court in Jagdish Chandra Sharma vs Narain Singh Saini (Dead) Through LRs and Others (1995) 4 SCC 459, reiterated the requirements propounded by Section 63 of Indian Succession Act as mentioned in the case of H.Venkatachala Iyengar (supra).
29. Sections 68 and 71 of the Indian Evidence Act, 1872 are also relevant which outline the mode of proof of the Will, a Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
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"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evi- dence:
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been regis- tered in accordance with the provisions of the Indi- an Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
Further, Section 71 reads as under:
"71.Proof when attesting witness denies the execu- tion.--If the attesting witness denies or does not Digitally (Neetu Nagar) signed by NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR NAGAR Date:
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30. In Jagdish Chand Sharma (supra) referring to Sec- tions 68 and 71 of the Evidence Act, it was observed that for a Will to be proved so as to make it admissible in evidence, being a document required by law to be attested by two witnesses, it would necessarily need proof of its execution through at least one of the attesting witnesses, if alive and capable of giving evidence.
31. The underlying principles related to the will were also explained by the Hon'ble Apex Court in the decision of Raj Kumari v. Surinder Pal Sharma MANU/SC/1840/2019, wherein it was observed thus:
"(1) Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of Wills, one cannot insist on proof with mathematical cer-
tainty.
(2) Since Section 63 of the Succession Act re- quires a will to be attested, it cannot be used as ev-
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idence until, as required by Section 68 of the Evi- dence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evi- dence."
32. In Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91, it has been explained that clause (c) of Section 63 of the Indian Succession Act requires and mandates attestation of a Will by two or more persons as witnesses, al- beit Section 68 of the Indian Evidence Act, 1872 gives conces- sion to those who want to prove and establish a Will in the court of law by examining at least one attesting witness who could prove the execution of the Will. However, where one attesting witness examined fails to prove due execution of the Will, then the other attesting witness must be called to supplement his evi- dence to make it complete in all respects to comply with the re- quirement of proof as mandated by Section 68 of the Indian Evi- dence Act, 1872.
33. Similar observations for proving of a Will were reit- erated in the case of Dhanpat vs Sheo Ram & Ors. 2020 (16) SCC 209, by the Hon'ble Supreme Court.
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34. In the case of Madhukar D. Shende v. Tarabai Shedage MANU/SC/0016/2002, the Hon'ble Supreme Court ex- plained how a Will must be proved and on whom the onus lies to prove the same. It was observed thus:
"5...It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adduc- ing prima facie evidence proving the competence of the testator and execution of the will in the man- ner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court af- firmatively that the testator did know well the con- tents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a find- ing of 'not proved' merely on account of certain as-
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sumed suspicion or supposition. Who are the per- sons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance."
(emphasis supplied)
35. To sum up the onus of proving the Will is on the propounder of the said Will. The law provides that the Will may be proved by examination of any one of the attesting witnesses, by virtue of Section 68 of the Indian Evidence Act.
36. Harking back to the facts of the present case, the de- fendant has relied on the first will dated 14.06.2013 executed by Late Smt. Bimla Devi in his favour in which the present plaintiff is one of the attesting witness. The defendant has duly proved the said will dated 14. 06. 2013, vide Ex.CCW1/4 by summoning the witness CW4 from Sub Registrar office. It is not disputed that Sh. Joga Singh, the other attesting witness has expired. Though the defendant has not examined his son in order to identify his signatures on the will dated 14.06.2013 but that is immaterial as the plaintiff himself being one of the attesting witness thereto has admitted the execution thereof as well his signatures thereon. The plaintiff has categorically admitted during his cross-examination as PW1 that he is aware of the execution of the registered will dated 14.06.2013 by his mother in favour of the defendant.
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Clearly, his signatures are appended thereon as an attesting wit- ness.Hence, the will dated 14.06.2013 stands duly proved.
37. It is next to be seen whether the will dated 02.02.2016 is a result of fraud and is a forged and fabricated doc- ument as asserted by the defendant.
38. In order to prove the will dated 02.02.2016, the plaintiff has summoned the witness PW-3 from Sub-Registrar of- fice as well examined one of the attesting witness thereto PW2 Hardeep Singh. PW-2 had specifically denied the suggestion of learned counsel of the defendant that he has signed as a witness in the will dated 02.02.2016 at the request of the plaintiff. It is significant to note that no question regarding the competence of the testator has been put to PW2 by learned counsel of the defen- dant. Meaning, thereby that the plaintiff has discharged the onus to prove the will dated 02.02. 2016 as required by section 63 of the Succession Act read with section 68 of Indian Evidence Act.
39. Let us now have a look on the will dated 02.02.2016 executed in favour of the present plaintiff.
40. The said Will says that it has been executed in the sound health and disposing mind of Bimla Devi in favour of her son Mr. Surjeet Singh. It is further mentioned therein that the Manjeet Singh (present defendant) has relinquished his share in the suit property and that he has been permitted by the surviving members to reside on the first floor and shall vacate the same as Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
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41. The defendant has questioned the genuineness and validity of the Will dated 02.02.2016 by asserting that the plain- tiff had taken the mother on the pretext of getting her medical treatment and had instead taken her to the office of the Sub-regis- trar to get executed and registered the said Will illegally and fraudulently in the absence of the defendant. This fact is vehe- mently denied by the plaintiff who has asserted that the said will has been executed in sound disposing mind by the testator thereof. No evidence has been adduced by the defendant except for bald averment that Smt. Bimla Devi was not in sound dispos- ing mind at the time of execution of the Will dated 02.02.2016. Even if for the sake of arguments it is assumed that late Sh. Bimla Devi was not well, it remains unproved on record that her health was bad enough to affect her power to dispose of her prop- erty at the relevant time. It is not the first time late Smt. Bimla Devi executed a registered will. Hence, the defence that the will is executed on the pretext of taking her for medical treatment is Digitally signed by (Neetu Nagar) NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR NAGAR Date:
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42. It was next contended that the contents of the Will dated 02.02.2016 were not an expression of the intentions of the Testator Smt. Bimla Devi. It is to be noted that it is an admitted fact that the testator Smt. Bimla Devi was not a literate woman being 5th class passed. The alleged Will was written in English and the onus was on the plaintiff to prove that the Will was pre- pared in accordance with the intention and at the instance of late Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
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43. In Pratap Singh & Ors. vs. The State & Anr. 173 (2010) DLT 132 (DB), it was observed that:-
"when there is no evidence that the Will was prepared on the direction of the testator and the contents of the Will were read over and explained to him in the language known, then the onus on the appellant to prove the mentally fit disposition of the testator would not stand discharged and it can- not be said that the Will is free from suspicion."
44. Similarly, in Belasia Bai Siya and Ors. vs. Pradeep Kumar and Ors. in Second Appeal No. 236 of 1996, decided on 16.03.2009, the High Court of Chhattisgarh observed that:-
"the mere fact that the Will is registered is not by itself sufficient to dispel all suspicion re- garding it. If the evidence as to the registration shows that it was done in a perfunctory manner and that the Officer registering it did not read its contents to the testator and did not satisfy himself in some way that the testator knew that it was a Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
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45. The Supreme Court in the case of Gurdial Kaur vs. Kartar Kaur (1998) 4 SCC 384 had observed that:-
"the conscience of the Court must be satis- fied that the document was not only executed and attested in the manner required under the Indian Succession Act, 1925, but it should be found that the said Will was the product of the free volition of the executor, executed after knowing and under- standing its contents."
46. It is pertinent to mention that there is not a single averment made by the defendant or his witnesses anywhere that the Will was not read over and explained to the testator who ad- mittedly did not know English Language. Further, the will dated 14.06.2013 in favour of the defendant was also in English. The testator was not getting the will registered for the first time as to conclude that she was oblivious regarding the procedure of regis- tration. Admittedly, Smt. Bimla Devi was residing with the plain- tiff and hence, she had every reason to bequeath her property in Digitally signed by (Neetu Nagar) NEETU NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
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47. The next defence of the defendant is that after the execution of the will dated 14. 06. 2013, it was orally agreed that the members of the family would remain in occupation of the re-
spective portions as the mother had already given her share to the defendant, however, there is nothing on record to substantiate the said oral agreement except for self serving statement of the de- fendant. The defendant has not examined the legal heirs of his other brother in order to substantiate the same.
48. Admittedly, late Smt. Bimla Devi had a pension ac- count in her name. The plaintiff has submitted that he does not know who was made a nominee in the said account. It was sug- gested to the plaintiff that Smt. Bimla Devi did not make him a nominee in any of her accounts and that she made the defendant a nominee instead. However, there is nothing on record to prove that the defendant has been made a nominee of late Smt.Bimla Devi.Hence, the contention in this regard raised by learned coun- sel of the defendant also fails.
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49. In order to further assail the will dated 02.02.2016, the defendant has also examined real maternal uncle of the par- ties as CW3 Karnail Singh in the counter claim who has deposed that the defendant used to take care of the entire family including the mother. He has deposed further that the first and the last will of Bimla Devi is dated 14.06. 2013. During his cross-examina- tion, he admitted that Smt. Bimla Devi was getting a pension from DDA and her medical bills were reimbursed by DDA. This witness has categorically admitted that the pension which Bimla Devi was getting was enough to maintain herself. Meaning thereby that Bimla Devi was not dependant upon her sons for her maintenance and her medical treatment.
50. This witness during his cross-examination has de- posed specifically that he does not know how many wills have been executed by Bimla Devi. Meaning thereby that the testi- mony of CW2 could not help the case of the defendant much. Even the defendant has admitted that his mother used to receive the pension amount and was capable of taking care of her chil- dren. Hence, the contention of the defendant that he was taking care of the entire house and the day-to-day needs of his mother stands controverted from his own admission.
51. The defendant has next examined CW2 Surender Singh who has deposed that Bimla Devi used to look after her sons namely Jitendra and Sunil by the pension which she used to NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by NEETU NAGAR Delhi: 18.09.2024 Page 37 of 50 Date: 2024.09.18 16:45:32 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) receive. This witness has not even stated the names of the sons correctly. In fact, the version of this witness also clarify that Bimla Devi was competent enough to take care of the entire fam- ily. He also has deposed that Bimla Devi had told him that she had not appointed any nominee hence the version of the defen- dant that he has been appointed as a nominee also stands falsi- fied. Even this witness has confirmed that before Bimla Devi ex- pired she used to reside with Surjeet Singh on the ground floor. Hence, it stands proved from the version of this witness also that it was the plaintiff with whom late Sh.Bimla Devi was residing. This witness has deposed that the defendant has told him that the Will is forged and fabricated. Hence, it seems that he is simply a hearsay witness in this regard.
52. It is also not disputed that at the time of death of Sh. Niranjan Singh, ground floor in the property was constructed. It is urged on behalf of the defendant that after the death of his fa- ther, the defendant out of his own savings and upon taking loan of Rs.35,000/- had constructed the upper floors i.e. second floor and third floor while the ground floor and half portion of first floor was already constructed. Same is denied by the plaintiff who has deposed during his cross-examination that his mother had got the same constructed out of her own resources. However, no evidence has been led in this regard by any of the parties. The defendant has next deposed that the construction of the third Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
2024.09.18 JSCC-ASCJ-GJ/South East 16:45:38 Delhi: 18.09.2024 Page 38 of 50 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) floor of the suit property was carried out in the year 2000 and he had taken a loan of Rs.35,000/-in the year 2000 to 2001. How- ever, the defendant is completely silent with regard to the spe- cific details of the construction and total expenditure incurred in construction. No bills regarding construction has been placed on record. It has also transpired that another suit for partition and permanent injunction has been filed by the plaintiff Surjeet Singh against Mrs. Gurmeet Kaur and Ms. Jaskaran wife and daughter respectively of late Sh. Jitender Singh who was the real brother of the plaintiff and the present defendant. DW1 has deposed that it is within his knowledge that Mrs. Gurmeet Kaur has claimed in the said suit that she has raised construction of the suit property. No document has been placed on record by the defendant during the trial in order to show that he has raised construction on any of the floors as asserted by him.
53. Merely for the reason that the electricity and water connection bills is in the name of the defendant is not suffice to prove his ownership qua the first floor of the suit property as mere long possession is not sufficient to prove title.
54. A perusal of Will dated 14.06.2013 shows that it is mentioned therein that as long as Smt. Bimla Devi is alive she will remain the absolute owner of the said immovable property and after her death her son Manjeet Singh will become absolute owner of the 1/3 rd share.However ,during her lifetime she has NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by Delhi: 18.09.2024 Page 39 of 50 NEETU NAGAR Date: 2024.09.18 16:45:44 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) executed another registered Will dated 02.02.2016. Hence, to my mind, the earlier will dated 14.06.2013 is of no effect as by exe- cution of another Will during the lifetime of a testator, the previ- ous Will if any stands automatically cancelled.There was no re- quirement of cancelling the same as execution of another Will during the lifetime is sufficient cancellation of the earlier Will. Further, it is settled that if the will is made in Delhi, no probate of the Will is required. Hence, the contention of the defendant that the will was required to be probated also fails.
55. It is also pertinent to mention that the defendant has not examined the legal heirs of the other son late Sh. Jitender Singh as to prove any objections or any claim regarding the said Will. The defendant has miserably failed to prove that the plain- tiff was very much party at the time of the execution of the said Will. The signatures of the plaintiff are not appended on the said Will. Merely for the reason that it has been mentioned in the said Will that it is first Will of the testator thereof when it is not so does not lead to the conclusion that the said will is a result of forgery and is a false and fabricated document as asserted by the defendant in the absence of any proof regarding the same. Hence, the Will dated 02.02.2016 stands duly proved by the plaintiff.
56. Further, the defendant has failed to prove any right, title or interest in the suit property. Hence, it stands proved that NEETU (Neetu Nagar) NAGAR Digitally signed by JSCC-ASCJ-GJ/South East NEETU NAGAR Delhi: 18.09.2024 Page 40 of 50 Date: 2024.09.18 16:45:50 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) the defendant is residing in the suit property as a permissive user or maximum as gratuitous licensee. The license of the defendant has been terminated by way of termination notice dated 25.02.2022 which is duly received by the defendant and replied also. Meaning thereby that the defendant is liable to vacate the same being in unlawful possession thereof after receipt of termi- nation notice dated 25.02.2022.
57. It is also admitted that the suit property as on date has not been partitioned in writing. The plaintiff raised a plea of oral partition that had taken place during lifetime of Smt. Bimla Devi by virtue of which the suit property got partitioned with the consent of the mother and all the legal heirs who came in posses- sion of their respective shares except for the defendant who was allowed to reside in the first floor of the suit property as a per- missive user. It is to be noted there are no details regarding the exact date of the partition. To my mind, the parties may have agreed to be in possession of respective portions, but it could not be termed as a partition resulting in severance of joint status, which existed at that time.
58. In the case of Ramesh Arya vs Pawan Arya and Ors. 2019 SCC OnLine Del 10240, an objection was raised to the suit for the partition that the property could not have been parti- tioned during the lifetime of Parmanand Arya, the erstwhile owner of the property, the father. It was explained by the Court Digitally signed by (Neetu Nagar) NEETU NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
Delhi: 18.09.2024 Page 41 of 50 2024.09.18 16:45:56 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) that partition can only be effected between those having share, right, title or interest in the property. It was observed that alloca- tion of separate portions of the property, for the use of the par- ties, in absence of a Will would not lead to the parties become its owner.
59. Hence, the tenor of the assertions of the plaintiff ex- plaining the way suit property has been distributed coupled with the contents of the Will dated 02.02.2016, it is evinced that it was not an oral partition but only an agreement about the separate possession and occupation of the properties between the legal heirs of late Smt. Bimla Devi. Moreover, the suit for partition has also been filed by the plaintiff regarding third floor in which the present defendant has been made a performa party as asserted by learned counsel of the plaintiff. It could not be understood why the third floor of the suit property will be kept out of the purview of the oral partition. The plea of oral partition is thus neither ten- able nor proved.
60. It was next argued on behalf of the learned counsel of the defendant that the present suit is not maintainable as the relief of declaration of title in the suit property has not been claimed by the plaintiff. Reliance was placed on Anathula Sud- hakar Vs. P. Buchi Reddy (dead) by LRs & Ors., on 25 March, 2008.
Digitally
signed by
NEETU
(Neetu Nagar) NEETU NAGAR
JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.18
Delhi: 18.09.2024 Page 42 of 50 16:46:01
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CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh
CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim)
61. Hence, the guidelines laid down by the Hon'ble Apex Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (dead) by LRs & Ors., on 25 March, 2008 are required to be reproduced which read as under:
"To summarize, the position in regard to suits for prohibitory injunction relating to immovable prop- erty, is as under: (a) Where 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. Where there is merely an interference with plaintiff's law- ful possession or threat of dispossession, it is suffi- cient to sue for an injunction simplicitor.
(b) As a suit for injunction simplicitor is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with refer-
ence to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by Delhi: 18.09.2024 Page 43 of 50 NEETU NAGAR Date: 2024.09.18 16:46:06 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) vacant sites, the issue of title may directly and sub- stantially arise for consideration, as without a find- ing thereon, it will not be possible to decide the is- sue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunc- tion. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will rele- gate the parties to the remedy by way of compre- hensive suit for declaration of title, instead of de- ciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may de- cide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.18 Delhi: 18.09.2024 Page 44 of 50 16:46:13 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) the normal rule that question of title will not be de- cided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cum- bersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his prop- erty. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more com- prehensive declaratory suit, depending upon the facts of the case".
62. The prime question thus is whether any cloud has been raised over the title qua the suit property or not. Here the plaintiff has proved the Will dated 02.02.2016 for showing his right in the suit property and to the contrary, defendant relied on Will dated 14.06.2013 which is an earlier Will than the Will in favour of the plaintiff. Apart from this, no document showing ti- tle or any right over the suit property has been filed by the defen- dant. Here since the defendant has not filed even a single docu- ment showing his ownership over the suit property except the earlier Will which is useless as the plaintiff has been able to prove the second Will in his favour during the lifetime of testa- tor, the defendant is thus a gratuitous licensee in the first floor of Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.18 Delhi: 18.09.2024 Page 45 of 50 16:46:18 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) the suit property. In view of the above settled legal position, the person having title suing for injunction should not be driven to the costlier and more cumbersome remedy of a suit for declara- tion. Mere denial of title by a stranger cannot be said to have raised cloud on the title of the plaintiff. There has to be some ap- parent defect in his title or the third party claiming right therein must show the prima facie case made out in his favour. Here the defendant is not coming up with a better title over the suit prop- erty. Therefore, the suit for injunction simplicitor is maintain- able.
63. The perusal of the plaint thus discloses a cause of action and the relief of mandatory injunction sought by the plain- tiff on the basis of licensor and licensee relationship is, therefore, maintainable. In this regard, observations in case law titled as Raj Khullar versus Anil Kapur and Ors pronounced on 03.10.2013 passed by Hon'ble High Court of Delhi are relevant and same are reproduced as under:-
"14. Reference may be had to the judgment of the Hon'ble Supreme Court in the case of Sant Lal Jain versus Avtar Singh (supra) where the Hon'ble Supreme Court approved the judgment of the High Court in the case of Milka Singh vs Diana, AIR 1964 J&K 99 and held as follows:-
Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.18 Delhi: 18.09.2024 Page 46 of 50 16:46:24 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) "6. ..... In Milkha Singh v. Diana, it has been ob-
served that the principle once a licensee always a licensee would apply to all kinds of licences and that it cannot be said that the moment the licence is terminated, the licensee's possession becomes that of a trespasser. In that case, one of us (Murtaza Fazal Ali, J. as he then was) speaking for the Divi- sion Bench has observed:
"After the termination of licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under s. 55 of the Specific Relief Act. We might further mention that even under English law a suit for injunction to evict a licensee has al- ways been held to be maintainable.
.... where a licenser approaches the court for an in- junction within a reasonable time after the licence is terminated, he is entitled to an injunction. On the other hand, if the licensor causes huge delay the court may refuse the discretion to grant an injunc- tion on the ground that the licenser had not been Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
Delhi: 18.09.2024 Page 47 of 50 2024.09.18 16:46:30 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) diligent and in that case the licenser will have to bring a suit for possession which will be governed by Section 7(v) of the Court Fees Act."
"8. The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property in- stituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the prop- erty as a licensee and seek his remedy separately in case he has acquired title to property subsequently through some other person." (emphasis supplied)
64. Furthermore, it is settled proposition of law that one co-owner can file the suit for eviction of a tenant / licensee in the property severally owned by co-owners.
65. Hence, the plaintiff being one of the co-owner in the suit property is entitled to obtain the possession of the first floor of the suit property from the defendant. Further, the plaintiff is also entitled to relief of permanent injunction in the nature of re- straint against creating any third party rights by the defendant in the suit property. As far as the relief of damages/occupation charges to the tune of Rs. 10,000/- is considered, no evidence as Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.18 Delhi: 18.09.2024 Page 48 of 50 16:46:35 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) such has been led on behalf the plaintiff. There is absolute not an iota of evidence as to the prevailing rate of rent in the vicinity of the plaintiff. No property dealer has been examined to prove the rent of similar properties. No rent deeds/license agreements of similar properties placed on record by the plaintiff. Hence, the damages/occupational charges cannot be awarded in the absence of any evidence in this regard. As a result, issues no. (a) and (b) of the main suit stand decided in favour of the plaintiff and against the defendant. Issue no. (c) stands decided against the plaintiff and in favour of the defendant.
66. Since the defendant/counter claimant failed to prove any right, title or interest in the suit property, he is not entitled to any relief. Accordingly, issues no. (a) to (c) of the counter-claim stand decided in favour of the plaintiff/respondent and against the defendant/counter claimant.
RELIEF
67. Resultantly, the present suit is decreed in favour of the plaintiff and against the defendant and counter claim is dismissed. The plaintiff is held entitled to obtain the possession of first floor of the suit property i.e. property bearing No. 891 Sunlight Colony, New Delhi within two months from the date of the judgment. Further, plaintiff is also entitled to decree of NEETU NAGAR (Neetu Nagar) Digitally signed by JSCC-ASCJ-GJ/South East NEETU NAGAR Delhi: 18.09.2024 Page 49 of 50 Date: 2024.09.18 16:46:43 +0530 CS SCJ 1308/22 Surjeet Singh Vs. Manjeet Singh CS SCJ 1628/22 Manjit Singh Vs. Surjeet Singh (counter claim) permanent injunction restraining the defendant from creating any third party rights in the suit property.
68. Costs of the suit be also awarded in favour of the plaintiff.
69. Decree sheet be prepared accordingly.
70. File be consigned to record room after due compliance.
Digitally
signed by
Announced in the open NEETU
NEETU NAGAR
court today i.e. 18.09.2024 NAGAR Date:
2024.09.18
(This judgment contains 50 pages 16:46:50
+0530
signed by the undersigned)
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Saket Courts: New Delhi
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Delhi: 18.09.2024 Page 50 of 50