Delhi District Court
Chattar Singh Saini vs Parmeshwari Devi And Ors on 29 May, 2025
IN THE COURT OF SH. SUNIL BENIWAL,
DISTRICT JUDGE-06
SOUTH DISTRICT, SAKET COURTS, NEW DELHI.
CS DJ NO.8479/2016
CNR No.DLST01-000527-2011
Chattar Singh Saini (Dead)
Through LR Ravi Prakash Saini
R/o 482, Hardev Puri,
Vill. Masjid Moth,
Tehsil Hauz Khas, New Delhi. .....Plaintiff
VERSUS
1. Parmeshwari Devi (Dead)
Through LR
(i) Neeta Saini
(ii) Suman Saini
(iii) Rajni Saini
(iv) Sandhya Saini
All are D/o late Sh. Hoshiyar Singh
All are R/o 482-C, Hardevpuri
Village Masjid Moth,
Tehsil Hauz Khas, New Delhi.
2. Sanjeev Saini
S/o Late Sh. Hoshiyar Singh
R/o 482-C, Hardevpuri,
Village Masjid Moth,
Tehsil Hauz Khas, New Delhi.
3. Ajay Saini
S/o Late Sh. Hoshiyar Singh
R/o 482-C, Hardevpuri,
Village Masjid Moth,
CS DJ NO.8479/2016 page 1 of 183
Tehsil Hauz Khas, New Delhi.
4. Shri Babu Ram Saini
S/o Shri Rishal Singh
R/o 136, Bhagwan Nagar, New delhi.
5. Municipal Corporation of Delhi
Town Hall Chandni Chowk,
Delhi 110006.
6. Hemlata
W/o Sh. Brijesh Saini
R/o 117/1, Masjid Moth,
New Delhi 110049.
7. Vinod Saini
S/o Sh. Bhagwat Prashad Saini
R/o 479, Hardevpuri Gautam Nagar,
New Delhi - 110049.
8. Rajni Singh
W/o Shri Rajendra Singh
R/o 122B/14, Gautam Nagar,
New Delhi - 110049.
9. Jagdish Chandra (Dead)
Through LRs
(i)Madhu Chandra (wife)
(ii)Sanjiv Chandra (son)
(iii)Krishan Kant (son)
(iv)Rajni Singh (Daughter, already arrayed
as defendant no.8 in the memo of parties)
All R/o 122B/14, Gautam Nagar,
New Delhi 110049. .....Defendants
Date of Institution : 24.10.2011
Arguments concluded on : 21.04.2025
Date of Judgment : 29.05.2025
CS DJ NO.8479/2016 page 2 of 183
Suit for declaration, permanent injunction and mandatory injunction
JUDGMENT
BRIEF FACTS & AVERMENTS OF THE PLAINTIFF
1. The captioned suit under disposal was filed by the plaintiff Lt. Sh. Chattar Singh Saini (since deceased) in the year 2011 against the defendant no.1 Lt. Smt. Parmeshwari Devi (since deceased), her two sons Sanjeev Saini & Ajay Saini, and defendant no. 4 Sh. Babu Ram Sani (presently being represented through his son Lalit Saini) seeking the reliefs of Declaration, Permanent Injunction & Mandatory Injunction.
2. The suit was amended in the year 2019 and the relief of Possession was also incorporated in the suit.
3. The original plaintiff Lt. Sh. Chattar Singh Saini, had two sons namely the LR of the plaintiff Sh. Ravi Prakash Saini and Lt. Sh Hoshiyar Singh Saini late husband of defendant no.1 and father of defendants no. 2 & 3.
4. It has been averred by the plaintiff that Lt. Sh. Chattar Singh Saini was the absolute owner of the entire suit property, including the subject matter of the present suit ie property bearing no. 482-C (rear portion of front portion of Property 482/ 482-C) admeasuring approximately 70 sq. yds., including the common area, situated at Hardev Puri, Village Masjid Moth, Tehsil Hauz Khas, New Delhi.
5. The elder son of the original plaintiff passed away in the year CS DJ NO.8479/2016 page 3 of 183 1999. It has been averred on behalf of the plaintiff that the elder son and his family ie Lt. Sh. Parmeshwari Devi (D1), their two sons Sanjeev Saini (D2) and Ajay Saini (D3) were staying with plaintiff Lt. Sh Chattar Singh Saini in the back side portion of H.no 482 admeasuring approximately 70 sq. yds., including the common area, situated at Hardev Puri, Village Masjid Moth, Tehsil Hauz Khas, New Delhi.
6. Further, since Lt. Sh. Hoshiyar Singh had passed away, the Plaintiff, out of care, love and affection towards his elder son, ensured that the family of his late son is taken care of, and gave them permission to continue staying with him during his lifetime.
7. As submitted on behalf of the plaintiff, in return, the defendant no.1 ie the daughter in law of the plaintiff and her sons, allegedly agreed to take care of the plaintiff, and give him daily expenses, maintenance etc. Till the year 2006, there were no serious disputes between the family members, which were out of the ordinary.
FACTS PLEADED BY THE PLAINTIFF:
8. It has been averred on behalf of the plaintiff as follows:
9. The Original Plaintiff (Lt. Sh Chattar Singh Saini) was, at the time of filing of the suit, the absolute owner of the suit property bearing no. 482-C (rear portion of front portion of Property 482/ 482-C (no official numbers are given in the said vicinity), admeasuring approximately 70 sq. yds., including the common area, situated at Hardev Puri, Village Masjid Moth, Tehsil Hauz Khas, New Delhi (hereinafter referred to as "the suit property").
10. After the demise of his elder son/ Sh. Hoshiyar Singh Saini CS DJ NO.8479/2016 page 4 of 183 (1999), the Plaintiff, out of love and affection, permitted the Defendants No. 1 to 3 (widow and sons of late Hoshiyar Singh) to reside in the said rear portion of the suit property on compassionate grounds.
11. In 2006-07, the Defendants no. 1 to 3 misbehaved with the Plaintiff as well as initiated unauthorized construction and encroached upon the common area of the front and rear portion of H.No. 482/482C. Accordingly, being the absolute owner of the said property, the Plaintiff filed a Suit bearing No. 242/2007 for permanent injunction against the defendant no. 1 to 3, in the Court of The Ld. Civil Judge, Tis Hazari District Court, Delhi.
12. The said suit was not contested by the defendants, and defendant no.1 acknowledged the Plaintiff's contention and settled the matter by way of making statement before The Hon'ble Court.
13. The said suit was disposed of vide order dated 14.09.2007, on account of statements recorded. The parties in the said suit were the original plaintiff ie Lt. Sh.Chattar Singh Saini, Lt. Smt Parmeshwari Devi (D1), Sanjeev Saini (D2), Ajay Saini(D3) and the present LR of the plaintiff ie Sh. Ravi Prakash Saini (D4). The Said document is exhibited as Ex. PW-7/1(Colly).
14. The statement goes on to read as follows:
"I, the defendant no.1 herein for myself and on behalf of defendant no.2 and 3 do hereby state that I am ready to keep the plaintiff who is my father in law, with me. I will provide all the due facilities to the plaintiff for his well-being and I will keep the plaintiff with due care and protection. I will also give the plaintiff the daily expenditure, money, necessary for his daily expenditure as per my capacity. I undertake that CS DJ NO.8479/2016 page 5 of 183 I will not make any construction or alteration in my residence without permission of the plaintiff. The present suit may kindly be disposed off."
15. On account of undertakings and acknowledgments of defendants no. 1 to 3, the Plaintiff had settled the said Civil Suit no. 242 of 2007. Subsequently, in the year 2011, the defendant no. 1 to 3 in blatant violation of the said undertaking tendered in Civil Suit no. 242 of 2007 and in connivance with defendant No. 4 (Sh. Babu Ram Saini), initiated illegal and unauthorized construction in the rear portion of the Property, including in the common area as well without any permission/ consent from the plaintiff, without seeking any sanctioned plan or authority. In the year 2011, upon objection raised by the Plaintiff, the defendants no. 1 to 3 falsely claimed ownership of the property on the basis of alleged fabricated documents dated 27.01.2006 i.e GPA, Will, Affidavit, Possession Letter etc. Further, it has also been averred by the plaintiff that threats were also extended to the plaintiff by Defendants no. 1 to 4.
16. It has been stated on behalf of the plaintiff that all the earlier given authorities/ permissions, by way of an oral settlement were revoked by the plaintiff in the year 2006 by way of serving a legal notice on the defendant no.1.
17. The Plaintiff, being aggrieved with the unlawful and illegal acts of defendants no. 1 to 4, preferred various complaints before the Police authorities and before defendant no. 5 (MCD), but no action was taken against the defendant no. 1 to 4. Accordingly, the plaintiff preferred the present suit for seeking reliefs of declaration qua said fabricated documents and injunction qua illegal deeds.
CS DJ NO.8479/2016 page 6 of 183 SUBMISSIONS OF THE PLAINTIFF RUNNING INTO 75 PAGES:
18. In the year 2006, the LR of the plaintiff ie Ravi Prakash Saini filed a suit against Parmeshwari Devi, Sanjeev Saini, Ajay Saini in the Court of the Ld. Civil Judge, Tis Hazari Court bearing no. CS SCJ 906/2006 seeking permanent injunction. The said suit was listed for the first time on 07.03.2006 and was settled by way of a compromise on 07.04.2006 i.e. within 30 days.
19. The settlement statement reads as follows:
"Statements of Smt. Parmeshwari Devi widow of Late Sh. Hoshiar Singh, Sh. Sanjeev Saini S/o Late Sh. Hoshiar Singh, Sh. Ajay Saini S/o Late Sh. Hoshiar Singh all residents of House no. 482, Hardevpuri, Masjid Moth, New Delhi.
ON S.A. We all the defendants jointly state that we have compromised the present suit with the plaintiff in terms of Ex. C-1 and C-2. The signatures of Smt. Parmeshwari Devi are at point E in Ex. C-1 and in accompanying affidavit at point F & G and on the compromise deed Ex. C-2 at point H, the signatures of Sh. Sanjeev Saini are at point I in Ex.C-1 and at point J on Ex.C-2, the signatures of Sh. Ajay Saini are at point K in Ex.C-1 and at point on Ex.C-2. We have heard the statement of the plaintiff and acknowledge the same to be correct. The present suit may be disposed off as compromised in terms of Ex.C-1 and Ex.C-2."
"Statement of Shri Ravi Prakash Saini S/o Shri Chattar Singh Saini R/o CS DJ NO.8479/2016 page 7 of 183 House no. 482, Hardevpuri, Masjid Moth, New Delhi, Age-46 On S.A. I am the plaintiff in the present suit and I state that I have compromised the present suit with the defendant in terms of the application under order 23 rule 3 accompanied by the compromise deed filed jointly by me alongwith the defendants. The application bears my signatures at point A and the accompanying affidavit at point B and C. The compromise deed bears my signatures at point D, the application under order 23 rule 3 is Ex.C-1 and the compromise deed is Ex.C-2. The present suit may be disposed off as compromised in terms of Ex.C-1 and C-2"
20. The relevant portion/ contents of the plaint as filed in 2006 read as follows:
"1. That the plaintiff is the owner of half portion of property bearing municipal no. 482 , Hardev Puri, Masjid Moth New Delhi, as shown "black" color in the site plan attached and the defendants, being the LRs of late Hoshiar Singh are the owners of another half portion of the said suit property, as shown by 'blue' colour in the site plan by virtue of family settlement, done by Shri Chatter Singh Saini, who is the owner of the entire property, during his lifetime."
21. THE DEED OF COMPROMISE READS AS FOLLOWS:
"THIS deed of compromise is made at Delhi on this 5 th day of April 2006 between the parties to the suit, here in after referred to be as Plaintiff and defendants on the following terms and conditions.
1. That the defendants have accepted what has been pleaded in the CS DJ NO.8479/2016 page 8 of 183 plaint by the plaintiff in the present suit.
.......... "
22. Evidently, the said deed of compromise was duly signed by Ravi Prakash Saini, Smt. Parmeshwari Devi, Sh. Sanjeev Saini, Sh. Ajay Saini and the respective Ld. Counsels for the plaintiff and the defendants.
23. It is also observed that the respective statements were given under oath, before the then Ld. Civil Judge, Tis Hazari Court, in the year 2006. As such, It has been submitted on behalf of the plaintiff that the defendants cannot be allowed to resile and/or refute the ownership of the plaintiff.
24. It has also been submitted that it is an admitted Legal and a binding fact that, Lt. Sh. Chattar Singh Saini was always the owner of the suit property ie H.no. 482, Hardevpuri, Masjid Mod, Hauz Khas, New Delhi.
25. It has been further submitted on behalf of the plaintiff that in the year 2007, the plaintiff (Lt. Sh. Chattar Singh Saini) was compelled to file a suit against the defendants D1 to D3 seeking Injunction, which was also disposed of as compromised vide order dated 14.09.2007 in CS 242/07 titled as Sh. Chatter Singh Vs Smt. Parmeshwari Devi wd/o Late Hoshiyar Singh & Ors.
26. It is a matter of record that the defendants gave the following statement on Oath before the then Ld. Civil Judge, Delhi:
"14.09.07 Suit NO. 242/07 Statement of Smt. Parmeshwari Devi w/o Late. Sh Hoshiar Singh, r/o CS DJ NO.8479/2016 page 9 of 183 House no. 482, Hardev Puri Masjid Moth, New Delhi-49 On Oath I, the defendant no.1 herein for myself and on behalf of defendant no.2 and 3 do hereby state that I am ready to keep the plaintiff who is my father in law with me. I will provide all the due facilities to the plaintiff for his well being and I will keep the plaintiff with due care and protection. I will also give the plaintiff the daily expenditure money, necessary for his daily expenditure as per my capacity. I undertake that I will not make any construction or alteration in my residence without permission of the plaintiff. The present suit may kindly be disposed off."
"14.09.07 Suit NO. 242/07 Statement of Sh. Chattar Singh S/o Late Kanhaiya Lal Saini r/o House no. 482, Hardev Puri Masjid Moth, New Delhi-49 On Oath I the plaintiff herein have read the statements and understood the statements of defendant no.1 which is also read over to me by my counsel. The present suit may kindly be disposed off as compromised in terms of the statements of the defendant no.1 to 4. I have permitted the defendants to make necessary alterations and construction in our residence."
27. It has been submitted that the above mentioned documents are already a part of the judicial file, and have been duly exhibited and admitted by the parties herein.
CS DJ NO.8479/2016 page 10 of 183
28. It has been submitted on behalf of the plaintiff that the fact that the defendant no.1 made a statement using the term "without permission of the plaintiff" establishes the fact that whatever rights, if any, the defendant no.1 was having, were because of the same being given to her by the plaintiff, who was the actual owner of the entire suit property.
29. It has been pressed on behalf of the plaintiff that as such, the defendants, prior to filing the present suit, on two occasions, by way of two different statements on oath, before two different Courts have unconditionally admitted the fact that the plaintiff was the owner of the entire suit property.
30. It has been submitted by the plaintiff that accordingly the present suit, which was filed in 2011, should have been decided in favour of the plaintiff at the very first instance. It is stated that the defendants, who don't have any respect for the rule of law, and the majesty of the Ld. Courts have used every trick in the book to delay the proceedings, and have also partially succeeded, as the plaintiff passed away in the year 2017, during the pendency of the present suit.
31. It has also been submitted on behalf of the plaintiff that the younger son of the plaintiff (LR) and the beneficiary of a duly registered Will, is representing the original plaintiff in the present suit.
32. It has submitted that the above mentioned fact is an admitted fact, and the defendants are estopped by way of pleadings from pleading something contradictory as per the doctrine of Issue Estoppel.
33. As such, the stated terms were one of the crucial conditions of the oral family settlement, qua which the plaintiff permitted the defendants CS DJ NO.8479/2016 page 11 of 183 no. 1 to 3 to stay with him, in the suit property.
34. It has been stated by the plaintiff that on 14.09.2007, neither the Plaintiff's ownership was ever challenged nor the permissive rights of defendant no. 1 to 3 were challenged. Moreover, no documents have been filed by the defendants no.1-4 alleging to have ownership of said portion.
35. It has also been stated that the alleged fake, forged documents forming the subject matter of the present suit (Power of Attorney, Possession Letter, Affidavit, Will etc all dated 27.01.2006) were not even brought up, and/ mentioned even once in the earlier two proceedings, which were compromised. Further, the defendants have never even placed the originals of the said impugned documents on the record of the Court as they know that their lies shall be established.
36. The plaintiff has gone on to submit that all the earlier given authorities/ permissions, by way of an oral settlement were revoked by the plaintiff in the year 2006 itself, which is an admitted fact in the pleadings, after which the above mentioned two suits were filed and compromised.
37. As such, any understanding/ compromise entered into post-facto the existence of an earlier understanding/oral settlement renders the earlier settlement null and void, unless the same has been expressly confirmed/ referred to/ validated in the subsequent understandings.
38. An objection was taken by the defendants no. 1 to 4 for not seeking the relief of possession by the Plaintiff. The suit was amended by way of affixing the ad-valorem court fee., and the said amendment was filed during the lifetime of the original plaintiff in the year 2016, CS DJ NO.8479/2016 page 12 of 183 which was subsequently allowed in 2019.
39. It has been stated by the plaintiff that the suit was amended by way of an order passed by the Ld. Predecessor Court dated 29.01.2019 wherein 'no objection' was given by the Ld. Counsel for the parties. The same is duly reflected in the order dated 29.01.2019. Thus, the defendants cannot be allowed to blow hot and cold challenging the validity of the said amendment.
DEFENCE OF DEFENDANT NO. 1 to 3:
40. On 20.05.2013 the written statement was filed by Defendants no. 1 to 3. The Defendants no. 1 to 3 raised objections in respect of the details of the property. It has been alleged that property is falling in Khasra no. 52, 53 and 54 and not in Khasra no. 217.
41. The Ld. Counsel for the plaintiff has submitted that the said objection is irrelevant as the defendants, in the present suit, as well as in the earlier filed suits, have admitted that the plaintiff was the absolute owner of the entire suit property. Thus the said defence is hit by the rule of estoppel.
42. Despite the fact that there were statements given by the defendants no. 1 to 3, despite the fact that a comprise deed/ consent decree was entered into by the defendants no.1 to 3, even then the defendant no. 1 went on to claim herself to be the owner of the suit property by way of documents dated 27.01.2006 i.e GPA/ WILL/ AFFIDAVIT/ POSSESSION LETTER, allegedly executed by the plaintiff.
43. It has been pressed on behalf of the plaintiff that the defendants CS DJ NO.8479/2016 page 13 of 183 are thereby seeking to derive their right in the suit property emanating from the plaintiff, whilst denying the existence of the suit property.
44. The plaintiff has also submitted that defendants no.1- 3 never placed on record the originals of the said purported documents. Further, the copies of the said purported documents ie GPA/ Will/ Affidavit/ Possession letter etc, dated 27.01.2006 bear no signatures of any witnesses. Neither are the same registered.
45. At this juncture, the Ld. Counsel for the plaintiff has cited the below mentioned judgement along with his submissions:
AIR 2011 SC 1492 H.SIDDIQUI VS. A. RAMALINGAM, it is held that:
"In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in S. 65. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The Court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. Where the respondent had merely admitted his signature on the photocopy of the power of attorney and did not admit the contents thereof and the trial Court without examining CS DJ NO.8479/2016 page 14 of 183 whether contents thereof had probative value decreed the suit for specific performance, the approach of trial Court was held to be improper."
46. The Ld. Counsel for the plaintiff has stated that upon getting knowledge that their lies have been caught, the defendants intentionally destroyed the said purported documents, in order to escape the accountability under criminal law. No reason/ accountability has been brought forward by the defendants to show why the said purported documents have not placed on the record of this Court.
47. It has been submitted in the submissions that the Defendants no. 1 to 3 contended to have some inter-se financial arrangement with Defendant no. 4, whereby the Defendant no. 4 had given certain loans to them for repayment of their third parties loans and helped them in renovating, repair and white wash of the suit property.
48. It has been submitted by the plaintiff that the entire alleged amount/ loan was paid in CASH, amounting to several lacs, that too allegedly given in the year 2010-2011.
49. The Ld. Counsel for the plaintiff has stated that the defence of the defendant no.1 to 3 is beyond all reason and logic. The essence of the statements means that one person allegedly took loans to renovate her house. The renovation was so extensive, elaborate and expensive, that the alleged owner of the said house transferred the renovated house to the builder, who was renovating the house, as she had no money.
50. The Ld. Counsel for the plaintiff has also submitted that the defendant no.4 is the person who allegedly gave a loan of Rs.
CS DJ NO.8479/2016 page 15 of 183 40,00,000/- (Rupees Forty Lac) to the defendant no.1, renovated the said suit property, and took the same from defendant no.1 as allegedly she could not repay the loan.
51. The Ld. Counsel for the plaintiff has also submitted Defendants no. 1 to 3 had undertaken to repay the loan to the Defendant no. 4.
52. Despite the fact that there was a consent decree, still, while violating all rules of law, the defendants no. 1 to 3 claimed to have the ownership of the property as well as absolute possession of suit property with them, based on the documents allegedly executed by the plaintiff, for which cancellation has been sought by the plaintiff, in the present suit.
DEFENCE OF DEFENDANT NO. 4:
53. The Written Statement dated 25.11.2011 was filed by Defendant no. 4. The Defendant no. 4 has vaguely denied the contents of the plaint and further relied upon the similar defence as that of defendants no. 1 to
3.
54. The Ld. Counsel for the plaintiff submits that it has been expressly pleaded that the defendant no. 4 had lent certain loans to the defendants no. 1 to 3 upon the assurance of re-payments by them.
55. The Ld. Counsel has also submitted that the defendant no.4, who is the main conspirator in the present suit had the remedy of seeking relief of recovery of monies from defendants no.1 to 3. Rather, the defendant no.4, in the absence of a prudent mind, chose to take possession of a property, which did not belong to the transferor in the first place.
CS DJ NO.8479/2016 page 16 of 183
56. Furthermore, defendant no.4 is a relative of the plaintiff and defendants no. 1 to 3, as has been admitted in the evidence proceedings. It has also been submitted that defendant no.4 was always aware of the status of the suit property, hence, hatched a plan to create evidence and manufacture forged and fabricated documents in order to usurp the property of the plaintiff.
57. The Ld. Counsel has also stated that it was denied that no construction was raised by defendant no. 4 in the property, except to done some repair, renovation and whitewash in the existing property, whereas evidently, registered documents created by defendant no.4 in violation of the interim order dated 05.03.2013, clearly mention that the said floors ie first floor and second floor of the suit property were constructed in 2014-2015.
58. It has also been submitted that defendant no.4 has committed contempt of Court on numerous occasions, and has also perjured himself on several counts, as the defendant no.4 has no respect for the rule of law.
WRITTEN STATEMENT FILED BY THE DEFENDANT NO. 5(MCD) EX-PARTE:
59. It has been submitted by the plaintiff that pending adjudication of the case, the suit property was inspected by the officials of defendant no. 5 and on finding the illegal construction upon the property, the same was booked vide file no. 132/UC/B-I/SZ/11 dated 16.11.2011.
CS DJ NO.8479/2016 page 17 of 183 REPLICATION FILED BY THE PLAINTIFF
60. All allegations have been denied and the plaintiff vehemently reiterated the contentions of the Plaint.
PLAINTIFF EVIDENCE:
61. After Completion of Pleadings as well as framing of issues, the Plaintiff lead his evidence by relying upon 6 witnesses to prove the contents and documents of the plaint.
62. PW-1: Ravi Prakash Saini (son of the Plaintiff, as substituted on demise of Plaintiff). Exhibited 59 documents from EX-PW-1/1 to EX- PW1/59.
63. It was also, clarified vide EX.PW-1/A that the suit property is falling in Khasra no. 53 and in khewat no. 217.
64. It has been submitted by the Ld. Counsel for the plaintiff that the said nomenclatures/ details of Khasra etc have no bearing as the entire locality was urbanized/ regularized in the year 1983.
65. The plaintiff has also submitted that the fact that the suit property belonged to the plaintiff is an admitted fact in three different proceedings, including the present case.
66. It has also been submitted on behalf of the plaintiff that Ravi Prakash Saini used to accompany his father ie Lt. Sh. Chattar Singh Saini on dates/ hearings, which has been duly recorded in several order sheets.
67. PW-2 ASI Dalip, was lead as a witness by the plaintiff, to prove the complaint dated 05.09.2011 vide Dairy no. 17073 made to the CS DJ NO.8479/2016 page 18 of 183 Commissioner of police by the Plaintiff. It has been submitted by the plaintiff that the same was proved from the records of the office of Commissioner of Police, Delhi.
68. PW-3 ASI Rajinder Kumar was examined as witness to prove the Complaint dated 07.07.2011, 18.08.2011 and 19.08.2011 made to the SHO, Hauz Khas Delhi. The witness without denying the said complaint and made reliance upon a circular dated 15.03.2019 by stating the records of said complaint to be destroyed.
69. PW-4 Shri Ram Chander was examined from MCD to prove the complaints dated 03.09.2011 and 05.10.2011 made by the Plaintiff against the Defendants qua illegal construction. The Ld. Counsel has submitted that the same were proved from the records of the office of MCD.
70. PW-5 Constable Ruchi Sharma was examined to prove the complaint made to the DCP, Hauz Khas Delhi. The witness without denying the said complaint and made reliance upon a circular dated 27.04.2017 by stating the records of said complaint to be destroyed.
71. PW-6 Shri Amitesh Kumar was examined from the office of Sub Registrar, SR-VA, Hauz Khas, Mehrauli, Delhi to prove the registered Will dated 26.11.2013 executed by Sh. Chattar Singh Saini/ Plaintiff in favour of his son/ substituted LR namely Shri Ravi Prakash Saini vide registration no. 1593, Book no. 3, Vol. no. 33 on pages 22 to 24. It has been stated on behalf of the plaintiff that the same was proved from the records of the office of Sub Registrar, SR-VA, Hauz Khas, Mehrauli, Delhi.
CS DJ NO.8479/2016 page 19 of 183 DEFENCE EVIDENCE
72. DW-1 Sanjeev Saini sought to examine himself for Defendants no. 2, 3 and other legal heirs of Defendant no.1 (as Defendant no. 1 expired during the pendency of the suit), in order to prove the property belongs to Defendant no. 1.
73. In regards to DW-2 Babu Ram Saini/ Defendant no. 4:
As submitted by the plaintiff, the Affidavit of Evidence was filed by the witness by improvising upon the pleadings.
It has been submitted by the plaintiff that DW-2 improvised on his case in the manner that he has purchased the Second and Third Floor of the property from the defendant no.1 by way of alleged GPA and Will dated 05.07.2011.
74. DURING COMPLETION OF EVIDENCE AND FINAL ARGUMENTS:
The Ld. Counsel for the plaintiff has stated that in regards to the order dated 05.03.2013, during initial adjudication, the Ld. Predecessor Court heard the arguments on application u/Or XXXIX Rule 1 & 2, whereupon the defendants no. 1 to 3 (through their counsel) and defendant no. 4 (on oath in person), made the express statement, whereby it was expressly undertaken that neither the said defendants will raise any construction upon the property nor they will create any third Party Rights. Upon such undertakings and statement, the Ld. Predecessor Court allowed the said application and directed the parties to remain bound in respect of their statements.
CS DJ NO.8479/2016 page 20 of 183
75. In regards to the order dated 19.01.2024, it has been submitted on behalf of the plaintiff that an application preferred by the Plaintiff under Order XXXIX Rule 2A CPC, it was found that during the course of adjudication and in violation of the order dated 05.03.2013, the defendants had raised unauthorised construction of 4 th floor in the suit property and accordingly, this Court was pleased to attach the said floor, constructed in violation of the Ld. Predecessor Court's Order dated 05.03.2013.
76. In regards to the order dated 11.03.2024, it has been submitted on behalf of the plaintiff that during the adjudication of application filed under Order XXXIX Rule 4 and application Under Order I Rule 10 of Defendant 6 & 7, it was established that the defendant no. 4 has created title rights of defendant no. 6 & 7 by way of executing an unlawful General Power of Attorney dated 22.12.2023. Though despite impleadment, defendant no. 6 & 7 have neither appeared nor have they filed any written statement.
77. In regards to the order dated 07.06.2024, it has been submitted on behalf of the plaintiff that during the adjudication of the application under Order XXXIX Rule 2A CPC, it was established that the Defendants no. 1 to 3 have executed title document qua First Floor of the Property in favour Defendant no.9, and Defendant no.4 created title documents qua Second Floor of the Suit Property to the Defendant no. 8 ie Smt. Rajni Singh. This Court ordered the attachment of the said floors, as the defendants had violated the interim order dated 05.03.2013.
78. In regards to the order dated 09.07.2024, it was submitted on CS DJ NO.8479/2016 page 21 of 183 behalf of the plaintiff that the defendants no. 8 & 9 preferred an application for seeking impleadment and this Court impleaded defendants no. 8 & 9. Subsequently, the defendants no. 8 & 9 chose to not file their respective written statements.
79. In regards to the order dated order dated 13.01.2025, the Ld. Counsel for the plaintiff has submitted that the applications under Order VII Rule 11 and Order I Rule 10 (4) filed by the defendants no. 8 & 9 were dismissed. This Court directed to remove the said defendants from the array of parties as no relief had been sought by the plaintiff from the said defendants.
80. In regards to the order dated 24.03.2025, as passed by The Hon'ble High Court of Delhi in CM (M) 535/2025, it has been submitted by the plaintiff that the Petition preferred by the Defendant no. 8 & 9 against the order dated 13.01.2025 was dismissed by The Hon'ble High Court, except for granting limited leave to the said petitioners to remain as defendants in array of parties as well as to participate in Final Arguments of the present suit.
81. FINAL ARGUMENTS AND SUBMISSIONS OF THE PLAINTIFF:
82. IT HAS BEEN SUBMITTED ON BEHALF OF THE PLAINTIFF AS FOLLOWS:
IDENTIFICATION OF THE PROPERTY:
83. The Defendants (though in batches) have primarily objected qua the property in question. It has been contended on behalf of the plaintiff that the suit property is claimed in the plaint to be situated in khasra no.
CS DJ NO.8479/2016 page 22 of 183 217, whereas the suit property is fallen in khasra no. 52, 53 & 54.
84. It is has been submitted that the Khasra no. mentioned as 217 in the plaint is merely a typographical error. It is to be considered that the Plaintiff was 88 years old at the time of filing of the plaint. Further, the Khasra no. mentioned in Evidence Affidavit expressly mentions the suit property to be falling in Khasra no. 53.
85. It has also been stated by the plaintiff that even so, the suit property belonged to the plaintiff is an 'admitted fact' which has been admitted by the defendants no.1 to 3 in the present case and in the earlier filed two cases (2006 & 2007).
86. The Ld. Counsel for the plaintiff has stressed that if out 100 facts, if 99 are correct, and 1 fact has been mentioned wrongly, the said one fact doesn't render all the other 99 facts irrelevant.
87. It is the case of the plaintiff that the suit property has always been identified and confirmed as H. no 482, Hardevpuri, Masjid Mor, Hauz Khas, New Delhi. All the documents, and the site plans, as have been admitted by all the parties pertain to the one and only suit property, which formed the subject matter of the present suit and the earlier filed two suits.
88. It has been stated on behalf of the plaintiff that if the defendants are denying the right/ title of the plaintiff, then, the rights of the defendants no.1 to 4 also vanishes automatically.
89. Further, the alleged Documents i.e GPA/ WILL/ POSSESSION LETTER/ AFFIDAVIT dated 27.01.2006, whereby the Defendant no.1 claimed her ownership through the plaintiff, qua the very same property, and the Plaintiff sought declaration of same, mentions property CS DJ NO.8479/2016 page 23 of 183 description as "Khewat no. 217".
90. Further, as stated by the Ld. Counsel for the Plaintiff, Lt. Sh.
Chattar Singh Saini had executed a registered Will dated 26.11.2013 which expressly records the suit property to be falling in Khasra no. 53.
91. At this stage, the Ld. Counsel for the plaintiff has sought to place reliance on the below stated judgements, and has also cited the paragraphs herein under:
92. PENTAKOTA SATYANARAYANA V. PENTAKOTA SEETHARATNAM (2005) 8 SCC 67 ; 2006 -2-LW 658 ; AIR 2005 SC 4362 ;
93."11. The case of the appellants cannot be thrown out. As already noticed, the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside. However, the testator could not be examined as he was not alive at the time of trial. All the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. Thus, in our opinion, the appellants have discharged their burden and established that the Will in question was executed by Srirammurthy and Ex.B9 was his last will. It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ex.B9 which was admitted to registration, namely, the date, hour and place of presentation of document for registration, the signature of the person admitting the execution of the Will and the signature of the identifying CS DJ NO.8479/2016 page 24 of 183 witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shift to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same.."
94. So far as burden of proof with regard to the pleading is concerned, it never shifts but burden of proving evidence shifts and go on shifting. This is called Onus (AIR 1964 SC 136). In the case of proof of Will, if a party pleads coercion, then the burden is on him to prove the same. In this regard, the decision of Apex Court reported in AIR 2008 SUPREME COURT 300 "Savithri vs. Karthyayani Amma" is relevant, wherein at para No.15, it is held that: "We may, however, notice that according to the appellants themselves, the signature of the testator on the Will was obtained under undue influence or coercion. The onus to CS DJ NO.8479/2016 page 25 of 183 prove the same was on them. They have failed to do so. If the propounder proves that the Will was signed by the testator and he at the relevant time was in sound disposing state of mind and understood the nature and effect of disposition, the onus stands discharged. For the aforementioned purpose the background fact of the attending circumstances may also be taken into consideration". [See B. Venkatamuni vs. C.J. Ayodhya Ram Singh and Others (2006) 11 Scale 148]. 2006 AIR SCW 6115 Doctrine of reverse burden: Hon'ble Apex while dealing with presumption and doctrine of reverse burden has held in the case reported in AIR 2008 SUPREME COURT 2467 "Harendra Sarkar vs. State of Assam" that "In this case, no such question was raised. At no stage any such complaint was made that the investigation carried by the investigating authorities was not proper or fair. Ordinarily, the court shall not raise such a presumption unless appropriate materials are brought on record. The court may or may not raise a presumption that an official act having been done was not in due course of its business, but in a criminal case, no presumption should be raised which does not have any origin in any statute but would cause great prejudice to an accused." Burden of proof is distinct from onus of proof. In this regard the decision of Apex Court reported in AIR 2006 SC 1971 in the case "Anil Rishi vs. Gurbaksh Singh" is relevant, wherein at head note B that "There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden CS DJ NO.8479/2016 page 26 of 183 of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later;
(ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to show the circumstances, if any, which would disentitle the plaintiff to the same." When the parties adduce evidence, the burden of proof looses its importance, in this regard, the decision of Apex Court reported in AIR 2006 SC 3626 - "Standard Chartered Bank vs. Andhra Bank Financial Services Ltd." is relevant.
95. SURINDER PAL SHARMA V. RAJ KUMARI & OTHERS LQ/DELHC/2018/542:
"9. It is also required to be noted that a presumption as to validity of the subject Will has to be drawn in favour of the appellant/defendant no.1 with respect to the subject Will which is a registered Will in as much as Section 114 of the Indian Evidence Act provides that judicial and official acts have to be presumed to be validly carried out. Sub- Registrar is a person holding public office. Therefore, such an official person is presumed to have correctly done his duty of requiring that the Will must have two attesting witnesses. It is seen that the Will is duly attested as it bears the signatures of Sh. M.N. Sharma, Advocate as a second attesting witness and this position is reiterated by Sh. M.N. Sharma signing again at the place of endorsement showing registration CS DJ NO.8479/2016 page 27 of 183 of the Will at the back of the Will. Thus the witness Sh. M.N. Sharma has in fact signed as the second attesting witness to the subject Will besides the signatures on the Will appearing of one Sh. Ramesh Kumar who is none other than the husband of the respondent no.1/plaintiff. Therefore, for this reason also in my opinion it has to be held that the subject Will was duly executed and attested as required by law. 10. In view of the aforesaid discussion, the finding and conclusion of the trial court that the deceased Smt. Suhagwanti did not leave behind a valid Will as the subject Will is allegedly only signed by one attesting witness, is a finding which is incorrect on the face of it and therefore is set aside."
96. It has been submitted that the Defendant Sh. Sanjeev Saini, deposed on behalf of Defendant no.1 and his brother Sh. Ajay Saini. During his cross examination, the defendant deposed on 17.01.2023 that:
"A. The said property does not pertain in any kh. No. because the same was received in donation."
"Q. Do you possess any document with regard to the ownership of this passage?
A. In the year 2006 my grandfather made a Will and a GPA and it is mentioned in these documents. Both these documents were executed in my presence and I signed the both. I cannot say whether any specification said passage in mentioned the above quoted Will and GPA. The said Will and GPA was signed/ executed in Mehrauli Tehsil in the presence of my grandfather, mother and myself. I do not remember whether someone else signed or not the Will and CS DJ NO.8479/2016 page 28 of 183 GPA. We appeared before the registrar at the time of signing the documents which was in a bunch. Same were registered."
(Emphasis supplied)
97. The Ld. Counsel for the plaintiff has stated that it is pertinent that the said documents Mark K, L, M & O ie Copy of the purported Possession Letter, purported GPA dated 27.01.2006, purported Affidavit, purported Will, all marked before the Ld. LC on 21.11.2019 are notarized, and do not bear the sign of any witness, let alone Sanjeev Saini.
98. As submitted, the said act of lying on oath before the Ld. LC establishes the fact that the defendants can go to any level, in order to grab the property of the plaintiff. When the witnesses have nil regard and respect for the majesty of law, and have the audacity to lie blatantly, then, under what pretext is one supposed to believe the credibility of such a witness.
99. It is observed the witness also went on to state:
"Q. How you claim yourself as owner of the suit property? A. The said property bearing No. 482 is obviously to be divided in two sons hence we are the owner of the half portion of the said property."
100. It has been submitted by the plaintiff that during cross examination on 11.11.2022 DW-1 stated as follows:
"At present I am in possession of all four floors of the backside of the suit property. In the year 1999 my father died. In the year CS DJ NO.8479/2016 page 29 of 183 2005/2006 backside of the said property was transferred in the name of my mother by my grandfather. It is correct that my grandfather Sh. Chattar Singh was the absolute owner of the whole property no. 482, Hardevpuri, Gautam Nagar, New Delhi. The inherited property mentioned in para no. 2 of my affidavit means the whole four floors in the backside of suit property. These four floors are constructed in 65 sq yds approximately."
(Emphasis supplied)
101. It has been submitted by the Ld. Counsel for the plaintiff that the witness (defendant no.2) has accepted the fact that he is claiming his right over the suit property, which is emanating from his late grandfather is the plaintiff.
102. The Ld. Counsel has also submitted that it is a simple case, wherein one person is saying that A gave something to B, hence B gave It to C, whereas, A ie the owner of the property is denying the alleged transfer publically and legally, and is asking for his property to be returned to him. The Ld. Counsel has also stated that the witness is once again lying, as the suit property comprises of 5 floors. Moreover, the site plan of the property is already on record before this Court, which establishes that the suit property is admeasuring 70 sq. yds and is in the rear portion of the H. No. 482/ 482-C.
103. It has been stressed by the Ld. Counsel for the plaintiff that in view of the above contentions, documents as well as examination of witness, it stands established that the property in question was absolutely owned by the Plaintiff/ Shri Chattar Singh Saini. Further, the CS DJ NO.8479/2016 page 30 of 183 mentioning of No. 217 as Khasra no. is merely a typographical error and identification of the suit property remained undisputed as property bearing no. 482C (rear portion of front portion of Property 482/482-C), admeasuring approximately 70 sq. yds., including the common area, situated in Khsara no. 53, Khewat no. 217, Hardev Puri, Village Masjid Moth, Tehsil Hauz Khas, New Delhi.
104. It has been submitted by the Ld. Counsel for the plaintiff that the address has always been correctly mentioned in the earlier filed suits, and in all the other proceedings/documents/ evidence, in the present suit.
105. The Ld. Counsel for the plaintiff has cited another judgement of the The Hon'ble Supreme Court of India, along with the relevant paragraphs:
NARAYAN BHAGWANTRAO GOSAVIBALAJIWALE V. GOPAL VINAYAK GOSAVI AND OTHERS AIR 1960 SC 100 ; [1960] 1 SCR 773 ; 1960 (1) SCJ 263 ; [1990] 76 STC 183 ;
"11...
In view of all these admissions and the revenue records, it was necessary for the appellant to prove that the admissions were erroneous, and did not bind him. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. ...."
"20. In view of these admissions, the question of burden of proof, as we have already pointed out, is really academic, and if any burden lay upon any party, it was upon the appellant to displace by cogent and CS DJ NO.8479/2016 page 31 of 183 convincing evidence that these admissions were erroneous and need not be accepted in proof. These admissions are two-fold: they concern the nature of the properties in dispute and the nature of the idol. Added to these are the decisions of the Inam Commissioner in respect of the villages, which were recorded as Devasthan Inams at the instance of Damodar, who appealed against the order to record them as personal inams. The value to be attached to the decisions of the Inam Commissioner had come up for consideration before the Judicial Committee in a series of cases.It is sufficient to refer to only one of them. In Arunachellam Chetty v. Venkatachalapathi Guru Swamigal, 46 Ind App 204: (AIR 1919 PC 62), the Judicial Committee while dealing with the Inam Register for the year 1864 which had been produced for their inspection, attached the utmost importance to it."
(Emphasis Supplied)
106. The Ld. Counsel has reproduced S.115 of The Indian Evidence Act in his written submissions, which states as follows:
"115. Estoppel.-
When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
Illustration A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.
CS DJ NO.8479/2016 page 32 of 183 The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title."
107. It is the law in S.115 which lays down that when one person has, either in word or by conduct, intentionally caused a person to believe to a thing to be true and to act upon such belief or to alter his position, neither he nor his representative in any suit or proceeding will be allowed to say that the representation was false. Estoppel is a principle of law by which a person is held bound by the representation, made by him or arising out of his conduct.
108. The renowned Jurist J. Coke has classified estoppels into three kinds, viz., (i) estoppel by matter of record; (ii) estoppel by matter in writing; and (iii) estoppel by matter in pais.
109. The main ingredients of estoppel as defined in section 115 i.e., estoppel in pais are:
(1)there must be some representation, (2)the representation must be made with the intention to be acted upon, (3)the representation must have been acted upon.
110. It has been submitted by the Ld. Counsel for the plaintiff in his extensively elaborate and detailed written conditions that the essential conditions for the application of section 115 state that eight conditions must be satisfied to bring a case within the scope of estoppel as defined in section 115.
111. As per the precedent of CHAGANLAL KESHAVLAL MEHTA CS DJ NO.8479/2016 page 33 of 183 V. PATEL NARANDAS HARIBHAI, : (1982) 1 SCC 223: AIR 1982 SC 121: (i)There must have been a representation by a person to another person, which may be in any form - a declaration or an act or an omission.
(ii)Such representation must have been of the existence of a fact, and not of future promises or intention.
(iii)The representation must have been meant to have been relied upon.
(iv)There must have been belief on the part of the other party in its truth.
(v)There must have been some action on the faith of that declaration, act or omission. In other words, such declaration, etc., must have actually caused the other person to act on the faith of it and to alter his position to his prejudice or detriment.
(vi)The misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice.
(vii)The person claiming the benefit of an estoppel must show that he was not aware of the true state of things. There can be no estoppel if such a person was aware of the true state of affairs or if he had means of such knowledge.
(viii)Only the person to whom the representation was made or for whom it was designed, can avail of the doctrine. The burden of proving estoppel lies on such person.
SUBMISSIONS OF THE PLAINTIFF IN REGARSD TO THE TITLE OF THE PROPERTY:
112. In the written statement filed by the defendants, and in the arguments, it has been pleaded by the defendants that the Plaintiff was CS DJ NO.8479/2016 page 34 of 183 not the owner of the property.
113. The Ld. Counsel has stated that the said contention and argument is not merely false on the face of it but also an absolute contradictory version than the documents and evidences relied upon. In the documents, i.e GPA/ WILL/ AFFIDAVIT/ POSSESSION LETTER (though Fabricated), the defendants have placed reliance on the fact that Chattar Singh Saini (Father in law of Defendant no.1) being the owner of the suit property had transferred the suit property to Defendant no. 1.
114. Therefore, the said contentions qua assailing the title of the Plaintiff are baseless, as on one part the Defendants have claimed to have the title of suit property, on account of documents allegedly executed by the Plaintiff in the capacity of its absolute and lawful owner, in favour of Defendant no. 1 and in the same breath are claiming that the Plaintiff is a stranger to the suit property, is nothing more than a misleading averment.
115. Further, during cross examination dated 01.11.2022 of DW-1, it is administered on oath that "In the year 2005/2006 backside of the said property was transferred in the name of my mother by my grandfather. It is correct that my grandfather Sh. Chattar Singh was the absolute owner of the whole property no. 482, Hardevpuri, Gautam Nagar, New Delhi."
116. Further, during cross examination dated 17.01.2023 of DW-1, on being asking the question:
"Q: How you claim yourself as owner of the suit property?" it is answered by the witness that:
"A. The said property bearing no. 482 is obviously to be divided in two CS DJ NO.8479/2016 page 35 of 183 sons hence we are the owner of the half portion of the property."
117. Further, defendant no. 4 has examined himself as DW-2 and by way of Evidence Affidavit dated 02.05.2023 he was examined in chief.
118. In para 6 of his affidavit, it is stated that...
"I further state that during lifetime of Late Shri Chattar Singh, he transferred the documents in favour of Late Smt. Parmeshwari Devi i.e GPA and Will dated 07.02.2006".
119. As submitted by the Ld. Counsel for the plaintiff, it is settled law that, a person giving another person any POA also has the right to revoke it, which was also done by the plaintiff in 2006, prior to consent decree/ settlement deed/ compromise deed as entered into by the plaintiff and the defendants no.1 to 3 in the year 2007.
120. Furthermore, all the contentions qua alleging the title of the Plaintiff turned contradictory, as on one part the title of Lt. Sh. Chattar Singh Saini was denied and on the other part, the possession along with the frivolous interest obtained through Sh. Chattar Singh have been relied upon.
121. Hence, in entirety the defendants have corroborated the acknowledgement of the title/ ownership of the property of Sh. Chattar Singh Saini in respect of the entire suit property. Else, some justification would have been offered by the defendants as to how their late mother came into possession of the suit property, and/or acquired the same.
122. It has been submitted that no title/ chain of documents, except for the ones allegedly executed by the plaintiff, have been referred to. Hence, the pleadings are hit by estoppel.
123. The Ld. Counsel has relied upon the below cited judgements, CS DJ NO.8479/2016 page 36 of 183 which go on to state as follows;
124. UNION OF INDIA V. IBRAHIMUDDIN, (2012) 8 SCC 148 "20. Admission is the best piece of substantive evidence that an opposite party can rely upon, though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. Admission may in certain circumstances, operate as an estoppel. The question which is needed to be considered is what weight is to be attached to an admission and for that purpose it is necessary to find out as to whether it is clear, unambiguous and a relevant piece of evidence, and further it is proved in accordance with the provisions of the Evidence Act. It would be appropriate that an opportunity is given to the person under cross- examination to tender his explanation and clear the point on the question of admission."
"21. In Nagubai Ammal & Ors. v. B.Shama Rao & Ors., [AIR 1956 SC 593] , this Court held that admission made by a party is admissible and best evidence, unless it is proved that it had been made under a mistaken belief. While deciding the said case reliance has been placed upon the judgment in Slatterie v. Pooley, (1840) 6 M & W 664, wherein it had been observed What a party himself admits to be true, may reasonably be presumed to be so."
(Emphasis Supplied)
125. BHANU KUMAR JAIN V. ARCHANA KUMAR & ANR 2005 (1) UC 402 ; 2005 -1-LW 582 ; 2005 (3) JLJ 303 (SC) ; 2005 (3) BOMCR 245 ; (2005) 1 SCC 787 :
"25. There is a distinction between issue estoppel and res judicata [See CS DJ NO.8479/2016 page 37 of 183 Thoday vs. Thoday - 1964 (1) All. ER 341]26. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res-judicata creates a different kind of estoppel viz Estopper By Accord. 27. In a case of this nature, however, the doctrine of issue estoppel as also cause of action estoppel may arise. In Thoday (supra) Lord Diplock held:"......"cause of action estoppel" is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non- existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e, judgment was given on it, it is said to be merged in the judgment....If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam." 28. The said dicta was followed in Barber vs. Staffordshire Country Council, (1996) 2 All ER 748. A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event the bar is absolute in relation to all points decided save and except allegation of fraud and collusion. [See C. (a minor) vs. Hackney London Borough Council (1996) 1 All ER 973;"
(Emphasis Supplied)
126. GOPAL PRASAD SINHA V. STATE OF BIHAR (1970) 2 SCC CS DJ NO.8479/2016 page 38 of 183 905 ; [1971] 2 SCR 619:
"8. In our opinion, the High Court came to the correct conclusion. The basic principle underlying the rule of issue estoppel is that the same issue of fact and law must have been determined in the previous litigation;"
(Emphasis Supplied) SUBMISSIONS OF THE PLAINTIFF IN RESPECT OF THE DOCUMENTS IE GPA/ AFFIDAVIT/ POSSESSION LETTER/ WILL DATED 27.01.2006.
127. It has been submitted that the defendants no.1 to 3 have contended in their written statement that it is vide alleged documents dated 27.01.2006 that the defendant no.1 has claimed to become the owner of the suit property.
128. The documents of which cancellation has been sought by the plaintiff i.e Affidavit/ Power of Attorney/ Possession Letter/ Will dated 27.01.2006, claimed by the defendants no.1-4 to be executed by Sh. Chattar Singh Saini in favour of Defendant no. 1 towards transferring of title of the property in question are false, frivolous, vitiated by fraud, and unreliable documents.
129. It has been stated by the plaintiff that the impugned documents are unregistered. It has been submitted that the documents relied upon by the defendants remain unregistered, despite purporting to deal with the transfer of immovable property.
130. As per Section 17(1) of the Registration Act, 1908, any document that creates, assigns, declares, or limits rights in immovable CS DJ NO.8479/2016 page 39 of 183 property must be compulsorily registered. Non-registration renders such documents inadmissible in evidence.
131. The law mandates that any transfer of immovable property requires compulsory registration. In the absence of registration, no valid title or interest in the property passes.
132. It has been submitted by the Ld. Counsel for the plaintiff that this position has been upheld in K.B. SAHA AND SONS PVT. LTD. V. DEVELOPMENT CONSULTANT LTD., (2008) 8 SCC 564, wherein the Hon'ble Supreme Court held that an unregistered document required by law to be registered is inadmissible for proving the transaction it represents.
133. The alleged documents have been claimed to be "registered" before Notary public on 07.02.2006. It has been submitted by the Ld. Counsel for the plaintiff that the alleged notary was not examined as a witness.
134. If one is to assume that the documents were notarized (though no such evidence is available), it has been submitted by the Ld. Counsel for the plaintiff that no notary public has been examined to establish the authenticity or execution of the said purported documents.
135. Under the Indian Evidence Act, execution of a document must be proved by a competent witness and evidence. The reliance upon such notarized documents, without examining the notary or attesting witnesses, does not satisfy even the assumption of execution of such purported impugned documents, especially when the document is disputed.
136. The Plaintiff has categorically and expressly contended that the CS DJ NO.8479/2016 page 40 of 183 documents were neither signed by him, nor such documents were ever executed to transfer the suit property in question to the defendant no.1 to
3.
137. It has strongly been pressed on behalf of the plaintiff that till date not even the original of the said documents have ever been produced by the defendants, and only copies were relied upon.
138. It has been submitted that the purported impugned documents were neither filed, mentioned nor were relied upon in the Civil Suit No. 242 of 2007. It is to be observed that in the year 2007, the Plaintiff preferred the earlier suit for seeking injunction against the present defendants no. 1 to 3 by expressly alleging himself to be the absolute owner of the absolute property and further, contended to have permitted the Defendant no. 1 to 3 to reside in the property in question.
139. In the said suit, the defendants no. 1 to 3 never disputed the said contention of the Plaintiff, and never produced any such purported documents dated 27.01.2006 (alleged to be notarized on 07.02.2006). Furthermore, the defendants proposed to settle the matter, in terms of undertakings dated 14.09.2007 before The Court of Law not to undertake any renovation/ repair in the property, without the permission of the Plaintiff as well as provide all due care and maintenance to the Plaintiff towards with permissive possession rendered to them by the Plaintiff.
140. The documents allegedly executed by the original plaintiff, in favor of defendant no.1 were never produced, marked, or relied upon during adjudication in Suit No. 242 of 2007.
141. It is settled law that documents not forming part of the pleadings CS DJ NO.8479/2016 page 41 of 183 or record cannot be introduced or relied upon at a later stage.
142. In regards to the said contentions, the Ld.Counsel for the plaintiff has cited a judgement of The Hon'ble Supreme Court of India: UNION OF INDIA V. IBRAHIMUDDIN, (2012) 8 SCC 148, the Supreme Court categorically held that unfiled or unproven documents cannot be considered in subsequent proceedings.
"5. We have considered the rival submissions made by learned counsel for the parties and perused the record. Presumption under Section 114(g) of the Evidence Act: 6. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. (Vide:Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; Hiralal & Ors. v. Badkulal & Ors., AIR 1953 SC 225 ; A. Raghavamma & Anr. v. A. Chenchamma & Anr., AIR 1964 SC 136 ; The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., AIR 1968 SC 1413; M/s. Bharat Heavy Electrical Ltd. v. State of U.P. & Ors., AIR 2003 SC 3024 ; Musauddin Ahmed v. State of Assam, AIR 2010 SC 3813; and Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011) 9 SCC 126 "
(Emphasis Supplied)
143. The Ld. Counsel for the plaintiff has also written in his submissions that even, for the sake of argument, and hypothetically, if CS DJ NO.8479/2016 page 42 of 183 one was to consider the validity of the impugned documents as genuine, it is settled law that the most recent document executed by the same person shall be given more validity over an earlier made document. Further, the validity of a GPA/POA is to be in existence only and only during the lifetime of the executor of the said GPA/POA.
144. Further, an un-registered document shall be deemed to trumped over by a registered document, especially when both the documents have been executed by the same person, whilst the executor is denying the execution of the unregistered document, and admitting to the execution of the registered document.
145. The Ld. Counsel has also stated that even if the averments of the defendant are taken to be as true and correct, then also the said transaction is non-est in the eyes of law, as the law of the land clearly states that "what can't be done directly, cannot be done indirectly". If the object of a certain transaction is unlawful, then the said agreement/ transaction is void ab initio.
146. The Ld. Counsel has cited a recent judgement of the Hon'ble Supreme Court of India; M. S. ANANTHAMURTHY & ANR vs J.
MANJULA ETC 2025 INSC 273:
"49. The issue at hand may also be looked at from another angle. The appellants have submitted that that since the GPA and the agreement to sell were executed by the same person in favor of the same beneficiary, it ought to have been read together. 50. Here, we deem it appropriate to take note of Sections 17 and 49 of the Registration Act respectively. The provisions have been reproduced hereinbelow:- "17. Documents of CS DJ NO.8479/2016 page 43 of 183 which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-- (a) instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; (e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property: Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. (1A) The documents containing contracts to transfer for consideration, any CS DJ NO.8479/2016 page 44 of 183 immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A. "
"...Effect of non-registration of documents required to be registered.-- No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall-- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) *** or as evidence of any collateral transaction not required to be effected by registered instrument.]" 51. Section 17(1)(b) prescribes that any document which purports or intends to create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property is compulsorily registerable. Whereas, Section 49 prescribes that the documents which are required to be registered under Section 17 will not affect any immovable property unless it has been registered. 52. The aforesaid has been emphatically laid down by this Court in Shyam CS DJ NO.8479/2016 page 45 of 183 Narayan Prasad v. Krishna Prasad & Ors., reported in (2018) 7 SCC
646. The relevant observations are reproduced hereinbelow:- "20. Section 17(1)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Registration Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under Section 17 of the Registration Act. Since, the deed of exchange has the effect of creating and taking away the rights in respect of an immovable property, namely, RCC building, it requires registration under Section 17. Since the deed of exchange has not been registered, it cannot be taken into account to the extent of the transfer of an immovable property." (Emphasis supplied)
53. Even from the combined reading of the POA and the agreement to sell, the submission of the appellants fails as combined reading of the two documents would mean that by executing the POA along with agreement to sell, the holder had an interest in the immovable property. If interest had been transferred by way of a written document, it had to be compulsorily registered as per Section 17(1)(b) of the Registration Act. The law recognizes two modes of transfer by sale, first, through a registered instrument, and second, by delivery of property if its value is less than Rs. 100/-. 54. This principle was recently elaborated by the High Court of Karnataka in Channegowda & Anr. v. N.S. Vishwanath & Ors., reported in 2023 SCC OnLine Kar 153. The relevant portion is reproduced as under:- "14. An attempt is made on behalf of the plaintiffs to contend that the second plaintiff has sold the property as a CS DJ NO.8479/2016 page 46 of 183 General Power of Attorney Holder and not as a title holder. It is argued that the Power of attorney is not compulsorily registrable. The submission is noted with care. Suffice it to note that a deed of power of attorney is not one of the instruments specified under Section 17 of the Registration Act compulsorily registrable. However, if a power has been created empowering the attorney to sell the property i.e., if a document that gives a right to the attorney holder to sell the immovable property, then it would be a document creating an interest in immovable property, which would require compulsory registration. In the present case, the General Power of Attorney alleged to have been executed by defendants 1 to 3 in favor of the second plaintiff is coupled with interest i.e., power of alienation is conferred but it is not registered. The Apex Court in the SURAJ LAMP's case has held that the General Power of Attorney Sale, or Sale Agreements/Will do not convey title and do not amount to transfer, nor can they be considered valid modes of transfer of immovable property. Therefore, it can be safely concluded that the declaration of facts/statement of facts (affidavit) and General Power of Attorney do not convey title. They are inadmissible in evidence."
(Emphasis supplied) 55. The High Court rightly held that even though the GPA and the agreement to sell were contemporaneous documents executed by the original owner in favour of the holder, this alone cannot be a factor to reach the conclusion that she had an interest in the POA. Thus, even though the GPA and the agreement to sell were contemporaneous documents executed by the original owner in favour of the same beneficiary, this cannot be the sole factor to conclude that she had an interest in the subject-matter. Even if such an argument were CS DJ NO.8479/2016 page 47 of 183 to persuade this Court, the document must have been registered as per Section 17(1)(b) of the Registration Act. In the absence of such registration, it would not be open for the holder of the POA to content that she had a valid right, title and interest in the immovable property to execute the registered sale deed in favour of appellant no. 2. 56. The practice of transferring an immovable property vide a GPA and agreement to sell has been discouraged by the following observations of this Court in Suraj Lamp (supra). The relevant observations are reproduced hereinbelow:- "24. 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 recognised 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. They cannot be recognised as deeds of title, except to the limited extent of Section 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/will transactions known as GPA sales." (Emphasis supplied) CS DJ NO.8479/2016 page 48 of 183 SUBMISSIONS OF THE PLAINTIFF IN RESPECT OF THE TITLE OF DEFENDANT NO. 4:
147. The consistent defence in pleadings by the defendants no. 1 to 3 and defendant no. 4 vide their respective written statements is that the defendants no. 1 to 3 had obtained personal loan (In Cash) from the defendant no. 4 towards getting the repair/ renovation conducted in the suit property, as well as towards repayment of loans obtained from third parties.
148. No Claim of Property Transfer has been made in favor of defendant No.4. It is most respectfully submitted that throughout the course of the pleadings and proceedings, neither defendants no. 1 to 3 nor defendant no. 4 have ever pleaded, stated, or otherwise claimed that any portion, share, or interest in the suit property was ever transferred or conveyed in favour of Defendant No. 4, in any manner whatsoever.
149. The written statements filed by defendants no. 1 to 3 clearly state that the monetary arrangements between them and defendant no.4 were limited to a private financial transaction, wherein defendant no. 4 allegedly provided funds to defendants no. 1 to 3 for the purpose of undertaking repairs and renovation of the suit property, as well as for repayment of some undisclosed third-party loans.
150. Defendant no. 4 has taken the same stand in his own pleadings.
At no point has defendant no. 4 claimed any ownership, title, possession, or proprietary rights over the suit property. Neither was there any pleading, assertion, or submission that any deed of sale, gift, or conveyance was executed in his favour. Therefore, the stand taken by the defendants unequivocally establishes that the relationship between CS DJ NO.8479/2016 page 49 of 183 them was of a lender and borrower.
151. In regards to the Mandatory Disclosure of Material Documents, Suppression of Power of Attorney, it has been submitted on behalf of the plaintiff that the suit was filed as far back as 2011, and despite over a decade of litigation, the document now claimed to be a Power of Attorney dated 26.07.2011, allegedly executed by defendant no. 1 in favour of defendant no. 4, was never disclosed, filed, or relied upon at any earlier stage of the proceedings. This Power of Attorney surfaced for the first time only on 02.05.2023, i.e., nearly 12 years after institution of the suit, and more than one year after the evidence of DW-1 concluded on 01.11.2022. Further, the original of the said power of attorney has also not been placed on the record of the Court.
152. In regards to the alleged deliberate Suppression of Material facts/ Documents, it has been submitted on behalf of the plaintiff that such a significant and material document, which forms the alleged basis of authority or right in favour of defendant no. 4, having not been produced at the relevant stage amounts to suppression of material facts and is indicative of an intent to mislead the Court. The late introduction of a copy of an alleged document, after closure of evidence, reflects an attempt to fabricate a foundation to justify possession or control over the property in favour of defendant no. 4, which otherwise did not exist in the pleadings or evidence.
153. The Ld. Counsel has relied upon another very recent judgement of The Hon'ble Supreme Court of India:
KUSHA DURUKA VS STATE OF ODISHA 2024 INSC 46, "3. About three decades ago, this Court in Chandra Shashi v. Anil CS DJ NO.8479/2016 page 50 of 183 Kumar Verma was faced with a situation where an attempt was made to deceive the Court and interfere with the administration of justice. The litigant was held to be guilty of contempt of court. It was a case in which husband had filed fabricated document to oppose the prayer of his wife seeking transfer of matrimonial proceedings. Finding him guilty of contempt of court, he was sentenced to two weeks' imprisonment by this Court. This Court observed as under: "1. The stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. 2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice. * 14. * * The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated documents is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large.
Anil Kumar is, therefore, guilty of contempt." 4. In K.D. Sharma Vs. CS DJ NO.8479/2016 page 51 of 183 Steel Authority of India Limited and others it was observed by this Court: "39. If the primary object as highlighted in Kensington Income Tax Commrs., (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA) is kept in mind, an applicant who does not come with candid facts and "clean breast" cannot hold a writ of the court with "soiled hands". Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.
5. In Dalip Singh v. State of Uttar Pradesh and others, this Court noticed the progressive decline in the values of life and the conduct of the new creed of litigants, who are far away from truth. It was observed as under:
'1. For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahinsa" (non- violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice- delivery system which was in vogue in the preIndependence era and the people used to feel proud to tell truth in the courts irrespective of the CS DJ NO.8479/2016 page 52 of 183 consequences. However, post- Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.'
8. In a recent matter, this Court again came across a litigant who had tried to overreach the Court by concealing material facts in Saumya Chaurasia v. Directorate of Enforcement. It was a case where the appellant before this Court had challenged the order passed by the High Court6 rejecting his bail application. He was accused of committing various crimes under the Indian Penal Code and the Prevention of Money Laundering Act, 2002. His bail application was rejected by the High Court on 23.06.2023. In the pleadings before this Court, it was mentioned that the High Court had committed gross error in not considering the chargesheet dated 08.06.2023 and the cognizance order dated 16.06.2023, which clearly suggested that there was error apparent on the fact of it. The fact which was available on record was that an order in the bail application was reserved by the High Court on CS DJ NO.8479/2016 page 53 of 183 17.04.2023 and pronounced on 23.06.2023. Having some suspicion, this Court directed the appellant to file an affidavit to clarify the aforesaid position. There was no specific reply given to the aforesaid query to the Court. Rather vague statements were made. Considering the facts available, this Court observed that there was a bold attempt by and on behalf of the appellant therein to misrepresent the facts for challenging the order impugned therein, regarding the conduct of the parties and the counsel, this Court made the following observations:
"14. It cannot be gainsaid that every party approaching the court seeking justice is expected to make full and correct disclosure of material facts and that every advocate being an officer of the court, though appearing for a particular party, is expected to assist the court fairly in carrying out its function to administer the justice. It hardly needs to be emphasized that a very high standard of professionalism and legal acumen is expected from the advocates particularly designated Senior advocates appearing in the highest court of the country so that their professionalism may be followed and emulated by the advocates practicing in the High Courts and the District Courts. Though it is true that the advocates would settle the pleadings and argue in the courts on instructions given by their clients, however their duty to diligently verify the facts from the record of the case, using their legal acumen for which they are engaged, cannot be obliviated."
154. The Ld. Counsel for the plaintiff has also referred to:
TILOKCHAND H.B. MOTICHAND 1969 1 SCC 110 & A SHANMUGAM V. ARIYA KSHATRIYA RAJAKULA VAMSATHU CS DJ NO.8479/2016 page 54 of 183 MADALAYA NANDHAVANA PARIPALANAI SANGAM (2012) 6 SCC 430; where it has been held that person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equitable fundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts.
155. Wide jurisdiction of the Court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands. No litigant can play hide and seek with the courts or adopt pick and choose True facts ought to be disclosed as the Court knows law, but not facts.
156. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the court.
157. The Ld. Counsel for the plaintiff has submitted that, in RAM SARAN VS. IG OF POLICE, CRPF AND OTHERS, (2006) 2 SCC 541, the Apex Court observed thus:
"....
CS DJ NO.8479/2016 page 55 of 183 .....In R. Vishwanatha Pillai v. State of Kerala and Ors., [2004] 2 SCC 105 it was observed as follows:
.......A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. ..............."
158. In RAM PREETI YADAV VS. U.P. BOARD OF HIGH SCHOOL AND INTERMEDIATE EDUCATION AND OTHERS, 2003 (SUPPL.) 3 SCR 352, It was reiterated after referring to various earlier decisions of the Apex Court that fraud, misrepresentation and concealment of material fact vitiates all solemn acts.
159. In RAJABHAI ABDUL REHMAN MUNSHI VS. VASUDEV DHANJIBHAI MODY, AIR 1964 SC 345, it was held that if there appears on the part of a person, who has approached the Court, any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion.
160. In the case of DR BUDDHI KOTA SUBBARAO VS K PARASARAN & ORS AIR 1996 SC 2687 the Apex Court observed as under:
161. No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a license to file CS DJ NO.8479/2016 page 56 of 183 misconceived and frivolous petitions.
162. The Ld. Counsel for the plaintiff has also relied upon the judgement of:
TITLED AS "THE HOLY HEALTH AND EDUCATIONAL SOCIETY (REGD.) VS DELHI DEVELOPMENT AUTHORITY, 1999(50) DRJ 416:
163. The Hon'ble High Court of Delhi at New Delhi has declined all claims solely on account of suppression and concealment of material Facts.
"17. I am therefore, of the considered opinion that the plaintiff did not come to this Court with clean hands and has also suppressed material facts from this Court with a view to gain advantage in the second suit and this is clearly over-reaching the Court. In coming to the aforesaid conclusions; I am fortified by the decision of Division Bench in Satish khosh (supra). Thus an attempt has been made by the plaintiff to over- reach the Court and the plaintiff has played fraud upon the Court as well as upon the opposite party and thus, the suit filed by the plaintiff itself is liable to be dismissed, in view of suppression and concealment of material facts by the plaintiff and his failure to come to the Court with clean hands.18. The submission of the learned Counsel for the plaintiff that the subject matter of the two suits were riot identical and, therefore, there was no suppression of material facts is also baseless in the earlier suit filed by the plaintiff in the Court of the Civil Judge, Delhi, the relief sought for in the plaint was for passing a decree of permanent injunction restraining the defendant from cancelling allotment of land as well as the lease of the suit property. In the present suit, the relief sought for by CS DJ NO.8479/2016 page 57 of 183 the plaintiff is also for a decree of permanent injunction restraining the defendant from giving effect to the letter dated 17.8.1995 issued by the defendant cancelling the allotment of land as well as the lease. The reliefs sought for in both the suits, therefore, are identical and almost similar. Even otherwise, the two suits relate to the same suit property and, therefore, all material and relevant facts were to be disclosed in the present suit filed by the plaintiff including the fact of rejection of the prayer of interim injunction by the Trial Court and the Appellate Court.19. The other submission of the learned Counsel forthe plaintiff that the objection/issue regarding alleged suppression of material facts cannot be considered by Court unless the same is specifically raised by way of an application is also without any merit. The defendant has raised the issue in the pleadings filed by way of reply and on the basis thereof, the Court is competent the Court, which goes to the to decided the issue as the same relates to the conduct of the parties in approaching root of the matter.20. In view of the aforesaid conclusions, the suit and the injunction application filed by the plaintiff stand dismissed for suppression and concealment of material facts. Parties shall bear their own costs.."
164. It has thus been submitted vehemently on behalf of the plaintiff that in view of the above mentioned judgements and ratio', the claim of the defendant no. 4 to have any right/ title/ claim over the property in question in any form is, otherwise also, mandatorily to be declined and the of placing on record such documents at later stage is nothing except to over reaching the process of Court.
165. As per the judgment of SURAJ LAMP & INDUSTRIES (P) CS DJ NO.8479/2016 page 58 of 183 LTD. V. STATE OF HARYANA (SURAJ LAMP II) (2012) 1 SCC 656, GPA, Will, Possession letters etc do not confer any title. Only a validly executed deed in accordance with the provisions of The Transfer of Property Act and The Indian Registration Act can confer any title in any immoveable property.
166. Deposition of DW-1 dated 01.11.2022- Establishes the contradictory stand taken by the defendants, which is neither in support of the claims pleaded in written statements but contrary to such contentions as well as establishing suppression of material facts and documents, with sole malafide intent to frustrate the process of adjudication of court.
167. Vide deposition dated 01.11.2022 of DW-1, it was contended that the entire suit property is under his physical possession. More significantly, DW-1 categorically stated in cross-examination that the ownership of the suit property is claimed on the basis of documents dated 27.01.2006, which were claimed to be executed by the Plaintiff in favour of Defendant No. 1, but not proved at any juncture.
168. As averred, the unambiguous and expressed contention in the cross-examination completely negates any suggestion of defendant no. 4 having any right, title, interest, or possession over the property. The deposition of DW-1 reflects that Defendant No. 1 alone asserts ownership and occupation, and such claim is entirely exclusive of Defendant No. 4.
169. Hence, any claim by Defendant No. 4, whether arising from a so- called Power of Attorney or otherwise, stands completely discredited and contradicted by the oral evidence of DW-1.
CS DJ NO.8479/2016 page 59 of 183
170. In regards to the issue of Fabrication and Abuse of Process, the Ld. Counsel for the plaintiff has submitted that the belated disclosure of the Power of Attorney (Copy) dated 26.07.2011, long after the conclusion of pleadings and evidence, and in contradiction to the stand taken in the written statements and evidence, is a clear attempt to fabricate evidence and frustrate the process of fair adjudication.
171. The Ld. Counsel has stressed that this Court may kindly take note of the fact that if such material documents are permitted to be introduced at a belated stage without any justification or explanation, it would amount to permitting litigants to mould their case dishonestly based on the course of the trial. Such conduct is not only legally impermissible but also amounts to an abuse of the process of court, for which the Courts are empowered to draw adverse inferences and impose costs.
172. It has also been stated that the contention is an absolute violation of the provisions of Order VIII CPC. The Ld. Counsel has stated that this Court must disregard and reject the Power of Attorney (Copy) dated 29.06.2011 (Allegedly regd. on 26.07.2011) as a belated and fabricated document. Further, even the originals of the said documents have never been produced by the defendants in accordance with the law.
173. It has also been submitted on behalf of the plaintiff that the defendant no. 1 Has No Right, Title, or Interest in the suit property. It has been submitted that Defendant No. 1 has based her claim of ownership over the suit property on certain unregistered and unauthenticated documents, which have not been duly proved in accordance with law. These documents, including those allegedly dated CS DJ NO.8479/2016 page 60 of 183 27.01.2006, have not been registered under the Registration Act, 1908.
174. Hence, no valid or lawful title can be claimed by defendant No. 1 based on said documents. If defendant No.1 herself has failed to establish any legal or proprietary right over the suit property, then any subsequent Will or General Power of Attorney (GPA) allegedly executed by her in favour of defendant no. 4 is rendered null, void, and of no legal consequence. It is a well established proposition that "A person having no legal title cannot convey rights to another".
175. In regards to the MOU dated 16.06.2011, it has been stated on behalf of the plaintiff that it is un-enforceable, Contradictory and Vague. Defendants No. 1 to 3 and Defendant No. 4 have relied upon a Copy of a purported Memorandum of Understanding dated 16.06.2011, under which Defendant no. 4 allegedly agreed to provide a loan. However, the said MOU is conspicuously silent on the exact amount of loan disbursed, thereby making the alleged transaction vague, ambiguous, and unenforceable.
176. The Ld. Counsel has also stated that the MOU alleged that in case of non- payment of the alleged loan in one month, second and third floors of the suit property would be transferred to defendant no. 4 by defendant no. 1. Such a clause is not only inherently penal in nature but also indicates a clandestine attempt to create an interest in immovable property through an unregistered and conditional private agreement, which is also impermissible under Section 17 of the Registration Act. Further, the object of the said MOU is illegal and ultra vires the law of the land, against public policy, hence the copy of the alleged MOU is not worth the piece of paper on which it has been written.
CS DJ NO.8479/2016 page 61 of 183
177. In regards to the issue of Contradictory Pleadings and Fabricated Claims, Proof of malafide Intent, the Ld. Counsel for the plaintiff has submitted that the contradictions in the stand taken by defendant no. 4 expose the deliberate falsity and malafides of the defendants. In the initial written statement, defendant no. 4 claims to have provided a loan of ₹40,00,000/- (Cash) to Defendant No. 1. Later, in the year 2023, Defendant No. 4 adopted contradictory stand by producing a Power of Attorney dated 29.06.2011, allegedly executed against a consideration of only ₹7,20,000, without explaining the mode of payment as well as contradictory to the pleading of ₹40,00,000.
178. This contradiction in the stated consideration, coupled with the suppression of material documents for over a decade, clearly demonstrates that the documents were concocted and fabricated with the sole intent to create a false trail of authority and property rights. The shifting versions and belated disclosure of documents undermine their authenticity and demonstrate that the defendants are acting in collusion and bad faith, with the intent to usurp the property of the Plaintiff under the guise of sham transactions.
179. At this stage, the Ld. Counsel has cited another judgement of our very own Hon'ble High Court in his written submissions; VED PARKASH AND ANOTHER V. M/S. MARUDHAR SERVICES LIMITED AND ANOTHER 2000 5 AD (DELHI) 845; 2000 (54) DRJ 654; HMJ VIKRAMJIT SEN " 7......Failure to plead facts which constitute a valid defence, must be read as admissions made as contemplated by Rule VI of Order 12. To hold otherwise would-be an emasculation of judicial powers to CS DJ NO.8479/2016 page 62 of 183 dispense complete justice. Justice delayed is justice denied." (Emphasis supplied)
180. In regards to the issue of the unauthorized construction, it has been submitted on behalf of the Ld. Counsel for the plaintiff that, in regards to the relief of mandatory injunction qua illegal and unauthorised construction, the Plaintiff has pleaded raising of illegal and unauthorised construction over the Plaintiff's property in question by the defendant no. 1 to 4.
181. The Plaintiff has submitted that defendants no. 1 to 4 have not only undertaken unauthorized construction but have also violated undertakings given in prior proceedings, suppressed material facts, and committed blatant breaches of municipal and judicial authority.
182. The Ld. Counsel for the plaintiff has submitted that there has been a false and a misleading denial of Construction by the defendants no. 1 to 4 in Written Statements, as they have categorically denied having raised any construction on the suit property. This denial is material and deliberate, as it goes to the very root of the present dispute concerning unlawful possession and unauthorized construction. However, this self-serving denial stands wholly contradicted by the voluntary and categorical admission made by DW-1, who appeared as a witness on behalf of defendant nos. 1 to 3.
183. It has been submitted on behalf of the plaintiff that there is a clear admission of renovation and construction by DW-1 in Cross- Examination. During the course of cross-examination dated 17.01.2023, DW-1 deposed as follows:
CS DJ NO.8479/2016 page 63 of 183 "In the year 2007/2008, the backside of the suit property was further renovated and Sh. Babu Ram was hired for this purpose. In the renovation process, three floors--i.e., Ground, First, and Second-- were renovated. In the year 2010/2011, two additional floors, i.e., the Third and Fourth Floors, were constructed in the said property.
184. It has been averred by the Ld. Counsel for the plaintiff that the testimony clearly and unequivocally establishes that not only were major renovations undertaken, but entirely new construction comprising of two floors was also raised upon the suit property by defendant no. 1 to 3. This factual admission completely demolishes their earlier denial and reveals their misrepresentation before the Court.
185. The Ld. Counsel has also submitted that there has been a clear Violation of Undertaking given in Civil Suit No. 242/2007. It has been submitted that in an earlier suit bearing Civil Suit No. 242/2007, defendants no. 1 to 3 had solemnly given an undertaking before the Court that no construction or structural modifications would be carried out on the suit property without the prior written consent of the Plaintiff. Despite this undertaking, the deposition of DW-1 (as cited above) proves that substantial construction was carried out during 2010-2011, including the erection of the "third and fourth floors", without any consent or knowledge of the Plaintiff. This conduct amounts to a wilful and deliberate breach of an undertaking given to the Court, which also tantamount to contempt of Court, and reflects the malafide and high- handedness of defendant nos. 1 to 3.
186. The act of unauthorized construction is further substantiated by CS DJ NO.8479/2016 page 64 of 183 the written statement filed by Defendant No.5 Municipal Corporation of Delhi (MCD). In its written statement, MCD has stated as follows:
"The suit property was inspected by the field staff of the MCD on 22.11.2011. During the inspection, it was found that the owner/occupier had raised unauthorized construction in the shape of Ground Floor to Fourth Floor and 'mumty' at the terrace in the rear portion. The construction has been booked under File No. 132/UC/B-I/SZ/11 dated 16.11.2011 under Section 343/344 of the DMC Act."
187. The statement of the statutory authority, of an independent and official inspection report, clearly establishes that the construction carried out by defendants nos. 1 to 4 is unauthorized, illegal, and in violation of municipal building laws. The construction was never sanctioned or approved by the MCD, thereby attracting penal consequences under the Delhi Municipal Corporation Act.
188. It has been stated on behalf of the plaintiff that the conduct of the defendants no.1 to 4 is malafide, tantamounts to collusion, and is an abuse of Process of the law. The defendants no. 1 to 4 have consistently made false denials in written statements regarding construction, which is full of contradictory and self-damaging admissions i.e during cross- examination.
189. In regards to the issue pertaining to the alleged title documents of defendants no. 6 & 7, it has been submitted on behalf of the plaintiff that during the pendency of the adjudication of the suit, it was revealed that the defendants no. 1 to 4 have inducted persons namely Hemlata and Vinod Saini into the suit property ie fourth floor which amounts to a CS DJ NO.8479/2016 page 65 of 183 clear violation of the undertaking given on Oath dated 05.03.2013.
190. It is an undisputed fact that defendants no. 1 to 4 gave an undertaking on oath dated 05.03.2013, before the Ld. Predecessor Court not to alienate, transfer, or part with possession of the suit property in any manner whatsoever during the pendency of the present proceedings. Despite the solemn undertaking, defendant No. 1 executed a series of documents purporting to transfer the fourth floor of the property, thereby violating the undertaking given to the Court and acting in contemptuous disregard of the judicial process. Such actions, carried out during the pendency of a suit and in the face of an injunction or undertaking, are settled to be null, void, and non-est.
191. It has been submitted that there defendants have executed a series of Unregistered, Notarized Documents. There is No Conveyance of Title. The purported transfers were executed via notarized and unregistered documents such as: Agreement to Sell (ATS), General Power of Attorney (GPA), Wills, Receipts, Affidavits, and Possession Letters. The chain of documents is as follows:
i. On 30.04.2014, Defendant No.1 allegedly executed GPA, Will, and an ATS in favour of one Mr. Subhash, transferring the Fourth Floor for a cash consideration of ₹30 lakhs.
ii. On 10.03.2015, Mr. Subhash, claiming to be the owner, further transferred the same floor to Mr. Mukesh Chauhan via similar documents, for ₹22 lakhs.
iii. On 08.12.2023, Mr. Mukesh Chauhan executed another set of ATS, GPA, Will, Receipt, Affidavit, and Possession Letter in favour of Mr. Vinod Saini and Mrs. Hemlata, for ₹15 lakhs.
CS DJ NO.8479/2016 page 66 of 183
192. None of these documents are registered under Section 17 of the Registration Act, 1908, and hence, as per law, no legal title or interest in immovable property exceeding ₹100 can pass through them. The Hon'ble Supreme Court in SURAJ LAMP VS STATE OF HARYANA (2011) SC has categorically held that GPA Sales or similar notarised documents do not convey title and cannot be a substitute for a registered deed of sale.
193. The Ld. Counsel for the plaintiff has also placed reliance is also placed on (KRISHNA KUMAR KHEMKA V. GRINDLAYS BANK P.L:C. AND ORS AIR 1991 SC 899, SURJIT SINGH & ORS. ETC.
ETC V. HARBANS SINGH & ORS. ETC. AIR 1996 SC 135, PUNJAB NATIONAL BANK V. DELLTE PROPERTIES PVT.LTD. & OTHERS AIR 2004 CAL 114, PRAVEEN GARG V. ORIENTAL BANK OF COMMERCE & ANOTHER 128 (2006) DLT 811 ; 2006 (87) DRJ ) supra.
194. It has been submitted again on behalf of the Ld. Counsel for the plaintiff that defendant no. 1 had no title to execute/ Convey/ transfer the suit property. Reliance has been placed on the Doctrine of Nemo Dat Quod Non Habet. Defendant No. 1 had no title or ownership rights over the suit property. As averred, the claim of the defendants no.1 to 4 is based on unregistered, unauthenticated, and disputed documents, which have already been challenged and discredited in the present proceedings. It is a settled principle that no one can transfer a better title than they possess (nemo dat quod non habet).
195. Therefore, any such transfer by Defendant No. 1 is non est in CS DJ NO.8479/2016 page 67 of 183 law and cannot confer any right upon Subhash, Mukesh Chauhan, or the subsequent vendees.
196. The Ld. Counsel for the plaintiff has also stated that the alleged transferees are not bona fide purchasers for value or in good faith, as they chose to transact through cash-based, unregistered documents, despite the pendency of civil litigation and an injunction over the property.
197. It has also been submitted by the Ld. Counsel that there is an evident trend of suspicious and frivolous nature of transactions, indicative of fabrication. Each of the above mentioned transactions reveals a pattern of distress sales where the alleged consideration progressively reduces from ₹30 lakhs (2014) to ₹15 lakhs (2023), despite the fact that property values in Delhi have significantly appreciated during the same period. The fact that all transactions were executed in cash without banking records, and through notarised documents, raises strong suspicion of forged and backdated paperwork designed to frustrate the adjudicatory process of this Court. There is a clear and deliberate effort to create a false paper trail in an attempt to show layered possession and alienation of the property so as to dilute the Plaintiff's claim. These documents, lacking registration and executed in violation of Court orders, are evidence of fraud and collusion, which must be viewed seriously.
198. In regards to the issue pertaining to the 'Legal Effect of Transfers During Injunction', the Ld. Counsel has submitted the said transactions/ transfer are Void and Inoperative. It is settled law that any transfer made during the pendency of an injunction or in breach of an undertaking CS DJ NO.8479/2016 page 68 of 183 is void ab initio, and does not confer any rights upon the transferees. There are various precedents where the Ld. Courts have held that such transfers are ineffective in law and liable to be set aside. The transfers made during the pendency of the suit without permission of the Court and in breach of express restraint amount to fraud on the Court, and no equities can be claimed by such transferees.
199. It has been submitted on behalf of the plaintiff that vide order dated 11.04.2024, this Court impleaded the defendants no. 6 & 7 as proper and necessary party and thereby, despite of their formal impleadment as well as providing time to file their written statement vide order dated 11.03.2024, the defendants no. 6 & 7 chose neither to appear before this Court nor to file their defence in the form of written statement and hence, their defence/ right to file the written statement was struck off vide order dated 05.08.2024. Hence, the defendants no. 6 & 7 cannot claim any right title claim over the alleged 4 th floor of the property in question.
200. In regards to the issue pertaining to the alleged title documents of defendants no. 8 & 9 (now being represented through Smt. Rajni Singh), it is submitted by the Ld. Counsel for the plaintiff that the Entire transactions pertaining to the transfer of First and Second Floors is in Breach of Injunction order dated 05.03.2013. Post-injunction sale deeds executed by defendants No. 1 to 4 and the untenable and collusive claims made by defendants No. 8 and 9, who are now attempting to project themselves as bona fide purchasers are in violation of the established procedures of law.
201. It has also been submitted that while being in an active on going CS DJ NO.8479/2016 page 69 of 183 breach of an order of the Ld. Court, the defendants no. 8 & 9 were seeking protection in accordance with the law, from the very same Court whose orders they have violated blatantly with impunity and without any remorse.
202. It has been reiterated by the Ld. Counsel for the plaintiff that there is wilful and a deliberate Breach of Injunction order by defendants no. 1 to 4. Vide order dated 05.03.2013, the Ld. Predecessor Court, upon solemn undertakings given by defendants no. 1 to 4, categorically restrained them from alienating, transferring, or creating any third-party rights in respect of the suit property, which includes all its portions-- ground to fourth floors. Despite the clear judicial restraint and express undertaking on oath, the defendants went on to execute Sale Deed dated 29.10.2015 (registered on 30.10.2015) in favour of Jagdish Chandra since deceased, (impleaded as Defendant no.9). The First Floor of the suit property was transferred through one Atul Gupta, who in turn claimed the transfer title from Defendant no. 1 (post facto the order dated 05.03.2013), which has no validity in the eyes of the law and is per-se illegal.
203. Further, it was also brought to the attention of the this Court that another execution of a Sale Deed dated 30.12.2016 (second floor of the suit property) was carried out by defendant no.4 in favour of Defendant no. 8 Smt. Rajni Singh D/o Jagdish Chandra. The illegal transactions were executed wilfully and in full knowledge of the subsisting injunction order, and they constitute nothing short of fraud on the Plaintiff, and upon the Court of law.
204. These acts are not only in gross contempt but have been carried CS DJ NO.8479/2016 page 70 of 183 out with a calculated intention to defeat the rights of the Plaintiff and obstruct the due process of adjudication.
205. It has been stated by the Ld. Counsel for the plaintiff that the transfers made in violation of Injunction of the injunction order dated 05.03.2013 are Void Ab Initio. The law is unequivocally clear that any alienation or transfer made during the pendency of litigation and in contravention of a judicial injunction is a nullity in the eyes of law. The transactions dated 29.10.2015 and 30.12.2016 are invalid, non-est as per law, void on multiple legal grounds, as the same violate the doctrine of lis pendens, under Section 52 of the Transfer of Property Act, 1882. It has been submitted by the Ld. Counsel for the plaintiff that the other defendants ie 6, 7 , 8 & 9 till date, have not initiated any legal action against defendants no. 1 to 4 for transferring them properties in violation on an injunction order.
206. It is settled provision that a party who acts in breach of an injunction, particularly after having given an undertaking, is not entitled to any indulgence from the Court, and any such act is a nullity.
207. It has also been submitted on behalf of the plaintiff that there is a calculated deliberate misuse of the legal process by defendants no. 8 and 9. It is a matter of record that upon discovery of the above fraudulent transactions, this Court passed attachment orders dated 07.06.2024, thereby attaching the First and Second Floors.
208. The defendants no. 8 & 9 filed an impleadment application. This Court vide its order dated 05.08.2024 allowed the application, and impleaded them as parties to the suit. Despite of impleadment and being given the liberty to file their written statement, the defendants no. 8 & 9 CS DJ NO.8479/2016 page 71 of 183 deliberately avoided filing their written statement and opted to seek a dismissal of the suit by way of applications under Order VII Rule 11 CPC and Order I Rule 10(4) CPC, both of which were dismissed by this Court vide detailed order dated 13.01.2025. Reliance has been placed on the judgements of KRISHNA KUMAR KHEMKA V. GRINDLAYS BANK P.L:C. AND ORS AIR 1991 SC 899, SURJIT SINGH & ORS. ETC. ETC V. HARBANS SINGH & ORS. ETC. AIR 1996 SC 135, PUNJAB NATIONAL BANK V. DELLTE PROPERTIES PVT.LTD. & OTHERS AIR 2004 CAL 114, PRAVEEN GARG V. ORIENTAL BANK OF COMMERCE & ANOTHER 128 (2006) DLT 811 ; 2006 (87) DRJ ) supra, which have already been cited by the plaintiff in the earlier proceedings.
209. It has been stated by the Ld. Counsel for the plaintiff that the defendants, at every opportunity, have assailed the interim orders of the Ld. Court before the The Hon'ble High Court of Delhi, Ld. Vacation District Judge, but without any favour from either of the Forums. It has been stated that the defendants did not get any relief from the Hon'ble High Court of Delhi, and no interim order was stayed by any Hon'ble Superior Court.
210. The defendants no. 8 & 9 challenged the said dismissal of application before the Hon'ble Delhi High Court by way of CM (M) NO. 535 OF 2025, RAJNI SINGH VS CHATTAR SINGH SAINI (DECEASED) THROUGH LR's which was also dismissed on 24.03.2025 by upholding the order dated 13.01.2025 to be correct and lawful, except for granting leave to the Defendant no. 8 & 9 to participate and make submissions during final arguments. No write to CS DJ NO.8479/2016 page 72 of 183 file the respective written statement was granted by the Hon'ble High Court of Delhi.
211. It has been argued by the Ld. Counsel for the plaintiff that defendants no. 8 and 9 are Not Bona Fide Purchaser. The said defendants have submitted before this Court during the course of the final arguments that they are the bonafide buyers of the said portions of property in question. It is apparent that the defendants no.8 (since deceased) & 9 have failed to establish themselves to be the bonafide purchasers as they failed to establish the thumb rule of Due Diligence. It is a settled position that a bona fide purchaser must act in good faith, for valid consideration and without notice, actual or constructive, of any defect in title or pending dispute.
212. The Sale Deeds dated 29.10.2015 and 30.12.2016 bear express and specific endorsements from the Office of the Sub-Registrar mentioning that "The property is booked by the MCD/ D-5 vide File No. 132/UC/B-I/SZ/11 dated 16.11.2011 for unauthorized construction. This endorsement serves as a public warning and legal caveat, putting the parties on constructive notice of serious legal disputes and illegalities related to the property. Despite of the same defendants No. 8 and 9 failed to establish due-diligence, inquiries with MCD (Defendant No. 5), the legal custodian of building records and municipal sanctions, to verify the legality of the construction, the title of the transferor(s); and the existence of pending civil litigation, whereas the said inspection as well as booking of property was conducted during pendency of present case and moreover, the defendant no.5 being a properly impleaded party must have preserved and filed the records of present CS DJ NO.8479/2016 page 73 of 183 case in their abovesaid file.
213. The Ld. Counsel has argued that such an a blatant failure of bare minimum due diligence reflects wilful blindness, and their purported claims to be "bona fide purchasers" is an apparent admission that the defendants no. 8 & 9 have deliberately created such transfer documents in regards first and second floor of suit property in active connivance with defendants no.1 to 4.
214. Therefore, no right, title, or interest has passed to defendants No. 8 and 9 through the impugned sale deeds, and the same are liable to be cancelled and declared void ab initio.
215. The Ld. Counsel has cited the below mentioned judgements in the written submissions:
KRISHNA KUMAR KHEMKA V. GRINDLAYS BANK P.L:C.AND ORS AIR 1991 SC 899:
" 2. This appeal is directed against the order of the Division Bench of the High Court of Calcutta. The appellant was transposed as the plaintiff in the original side Suit No. 2479 of 1967 in the High Court of Calcutta. The suit was filed for a declaration that the various properties set out in the Schedule belonged and still belong to the joint family consisting of the members mentioned in the plaint. Pending the suit an application was filed for appointment of a receiver for the various properties mentioned in Schedule A annexed to the petition, for injunction and for other reliefs. One Mr. S. C. Sen was appointed as Receiver. A declaration was also sought in the suit that the trust dated October 20, 1948 created by late Gopi Krishna Khemka, father of the plaintiff, is void and for cancellation of the same. Premises No. 38, New CS DJ NO.8479/2016 page 74 of 183 Road, Alipore, building with open space was one of the properties belonging to the trust. Grindlays Bank Limited (Grindlays for short), respondent 1 herein was the original tenant and they were occupying four flats and they surrendered a portion of the tenancy namely two flats i.e. flats Nos. 1 and 2 which came into effect from April 1, 1978. The receiver let out these two flats to M/s. Tata Finlay Ltd. (Tatas for short) with effect from February 7, 1979 pursuant to a letter written by Tatas. Questioning the action of the receiver an application was filed in the High Court contending that the receiver had no authority to create any tenancy and that the receiver has virtually created two new tenancies terminating the original tenancy of Grindlays and it was contended before the learned Single Judge of the Calcutta High Court that neither Grindlays not Tatas were entitled to occupy the premises and they are liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for but, however, observed that the respective contentions of the parties as to the validity of the tenancy created in favour of Tatas have not been finally decided by the High Court and that the parties are at liberty to agitate the same grounds in any action that they may be advised to proceed for eviction of Tatas and Grindlays. As against the order of the learned Single Judge, an appeal was filed before a Division Bench. It was contended before the Division Bench that upon surrender of flats Nos. 1 and 2 by the Grindlays a fresh tenancy was created by the receiver from April 1, 1978 and the other tenancy in favour of Tatas is beyond the powers of the receiver and that the receiver had no authority to create any tenancy either in favour of Grindlays or Tatas. Various contentions were raised CS DJ NO.8479/2016 page 75 of 183 before the Division Bench and ultimately the Division Bench having considered the several submissions passed an order, the operative portion of which reads as follows:
"Therefore, the petitioner is entitled to get a decree for possession on any ground mentioned in Section 13(1) of the said Act and such relief can be obtained in a suit which cannot be filed in this court inasmuch as the premises in question is situated outside the original side jurisdiction of this court...
12. ...
In an unreported judgment of the Calcutta High Court in Smt. Ashrafi Devi v. Satyapal Gupta (Suit No. 966/58 dated 9th Sept., 1977) Justice Sabyasachi Mukharji, as he then was, dealt with the question of cancelling the tenancy of lease created in respect of a room and kitchen by the Official Receiver. In that case it was found that the Official Receiver violating the order of the injunction granted lease which the court found it to be illegal. Then the learned Judge proceeded further to consider whether such an illegality can be rectified in the proceedings before the court and it was held that :
"Therefore, by acting in violation of the order of the court, no right, in my opinion, can be created in favour of a third party. Indeed the court has not acted. The action was in breach of the order of the court....
16. Similarly as observed in Arumugha Gounder case (AIR 1975 Mad
231) any such act of the receiver done on behalf of the court pendente lite and anyone who gets possession through such an act could only do so subject to the directions and orders of the court. If we apply the CS DJ NO.8479/2016 page 76 of 183 above principles to the case of Tatas the tenancy created in their favour by the receiver is in violation and contrary to the injunction order and such an act is subject to the directions and orders of the court appointing the receiver. Therefore the tenancy created in favour of the Tatas was in breach of the order of the court and consequently the Tatas claim any protection under the provisions of the and they are liable to be evicted.
In the counter-affidavit filed on their behalf, it is no doubt stated that they were inducted into possession and even sending the cheques. The case of the appellant is that cheques were never encashed. In any event as observed above, the new tenancy created in their favour contrary to the orders of the court does not create a right and is liable to be cancelled. Consequently the provisions of the cannot be invoked by them. The appeal is therefore dismissed as against respondent 1 Grindlays and allowed as against respondent 2 Tatas. In the circumstances of the case, parties are directed to bear their own costs."
216. SURJIT SINGH & ORS. ETC. ETC V. HARBANS SINGH & ORS.ETC. AIR 1996 SC 135:
"3. We could have arrived at the conclusion, which we are about to by treading on two different parts. One was the way in which the trial Court and the Additional District Judge have been led to in pronouncing on the two contentions raised as to the nature of assignment of a decree, being property or not; and the interpretation of paragraphs 13 and 14 of the settlement deed. The other was in treating the assignment as non est because of the clear prohibition of the trial Court to the parties from alienating or transferring in any manner any part of the property CS DJ NO.8479/2016 page 77 of 183 involved in the suit. Having heard learned counsel for the parties at great length and having examined the settlement deed as also the assignment, we are of the view that it would be far more prudent to tread the second path and to arrive at the conclusion laying the matter back to the trial Court for finalisation of the suit by passing a final decree for partition.
4. As said before, the assignment is by means of a registered deed. The assignment had taken place after the passing of the preliminary decree in which Pritam Singh has been allotted 1/3rd share. His right to property to that extent stood established. A decree relating to immovable property worth more than hundred rupees, if being assigned, was required to be registered. That has instantly been done. It is per se property, for it relates to the immovable property involved in the suit. It clearly and squarely fell within the ambit of the restraint order. In sum, it did not make any appreciable difference whether property per se had been alienated or a decree pertaining to that property. In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/ assignment as having not taken place at all for its purposes. Once that is so, Pritam Singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees respondents CS DJ NO.8479/2016 page 78 of 183 could not have been impleaded by the trial Court as parties to the suit in disobedience of its orders. The principles of lis pendens are altogether on a different footing. We do not propose to examine their involvement presently. All what is emphasised is that assignees in the present facts and circumstances had no cause to be impleaded as parties to the suit. On that basis, there was no cause for going into the question of interpretation of paragraphs 13 and 14 of the settlement deed. The path treaded by the Courts below was, in our view, out of their bounds. Unhesitatingly, we upset all the three orders of the Courts below and reject the application of the assignees for impleadment under Order 22 Rule 10 C. P. C."
217. PUNJAB NATIONAL BANK V. DELLTE PROPERTIES PVT.LTD. & OTHERS AIR 2004 CAL 114 " 1908 Act, Or. 39 Rr. 1 & 2 -- Interim order of status quo -- Effect of
-- Interim order of status quo passed by Court binding on parties only and not on third parties -- Third parties who took possession in breach of said order held to be rank trespassers and not entitled to remain in possession -- Tenancy -- Eviction of tenant
4. In view of the aforesaid submission on 20th December 1994 Mr. Justice Sen was pleased to appoint three learned Lawyers of this Court Joint Special Officer to visit the 1st to 5th floors of the premises in question and to submit report to the Court about possession of the said floors, and also the car-parking space. On 2nd January 1995 Justice Sen was pleased to pass order directing that no transfer will be effected in respect of the premises in question until further order of the Court.
CS DJ NO.8479/2016 page 79 of 183
5. Pursuant to the order of Justice Sen Joint Special Officers submitted report on 20th December 1994 and it was found then the following persons were in possession and/or occupation in the respective floors as follows :
1st Floor Regards Sarees, G. P. Chokhany 2nd Floor Aakanksha, Exxon Bandana Sangeet 3rd Floor J. L. Agarwal, Beejay 4th Floor Vivek Gupta, Gallop Wheelers5th Floor R. K. Gupta, R. K. Gupta, Ashok Gupta 6. When the aforesaid information of transfer of various floors was given to the Court, the defendant No. 1 was directed to supply the particulars of the names of the occupants as was required to be given statutorily under the Income-tax Act 1961 in form 37-I. It was not supplied by the defendant No. 1. So, in terms of the Courts order the Income-tax department produced 12 numbers of Forms 37-I dated 14th September and submitted dated 14th September 1994. In this form it was found only Bandana Sangeet and Gallop were stated to be in occupation on 1st floor and 2nd floor.
7. The aforesaid interlocutory applications were ultimately disposed of by Justice Sen by order dated 3rd May 1995 directing the parties to maintain a status quo with regard to the flats and car-parking spaces which are subject-matter of dispute, as on 20th December 1994.
8. It appears that plaintiffs not being contended with the aforesaid order of status quo, preferred an appeal in order to get further interim relief.
The appeal Court on 19th May 1995 dismissed the appeal observing that the interim order of status quo was sufficient enough to protect the plaintiffs interest. However, the said order of the appeal Court kept reserved the right and interest of the parties for future action. Thereafter CS DJ NO.8479/2016 page 80 of 183 the plaintiff took out another interlocutory application being GA No. 641 of 1995 for order of injunction and appointment of Receivers and also for eviction of 3rd party namely, one M/s. Modi Olivette.
9. In that application it was the grievance of the plaintiff/petitioners that in breach of the order of status quo, the said 3rd party had taken possession, therefore, it should be evicted and further the properties in question shall be brought to the custody of the Court by appointing Receiver so that in future there might not be any repetation of breach of the interim order of status quo.
10. On that application another Special Officer was appointed by the Court for submitting a report to ascertain who were in possession and/or occupation of the suit premises on that date as there was an allegation that meanwhile, there was change of hands of possession and occupation of the suit premises. The Special Officer submitted report to the Court stating floor-wise possession and occupation of the persons as on 8th August 1995 and 4th September 1995. From the reports I find excepting Regards Sarees on the 1st Floor, Aakanksha represented by Mr. R. K. Agarwal on the 2nd Floor, J. L. Agarwal, Beejay Investment on the 3rd Floor, Gallop Granite on the 4th Floor, R. K. Gupta on the 5th floor there were number of new occupants in the suit pre-mises. The respondent No. 1 also supplied information to the Court on 10th May 1996 to the effect that other different persons were in occupation. I am not concerned with the statement of the defendant No. 1 and the names of the occupants.
11. The question here is whether any person in breach of the order of status quo has come into possession or occupation. The said application CS DJ NO.8479/2016 page 81 of 183 was finally heard by Justice Mrs. Ruma Pal (as Her Lordship then was) appointing Joint Receivers over the suit premises and further directing the Receivers not to allow the status quo in the premises to be disturbed by any person in any manner whatsoever. The Receiver was also directed to take possession of vacant portion of the aforesaid floors. Further, direction was given upon the Receiver to take possession within 24 hours from one M/s. Modiolivette. In default of handing over possession the Receiver was directed to evict Modiolivettee from the flats in its occupation forthwith, as the said person was found to have been in possession in gross breach of the order of this Court.
16. From the two reports I find there is change of hands of possession. Under those circumstances I was of the prima facie view that the new entrants in the said floors came in possession and occupation of the suit premises in breach of the order of status quo and further interfering with and/or disturbing in the possession of the Receiver. Accordingly I directed the Receiver to serve notices upon all the occupants and to state their locus to remain in possession and/or occupation. A number of persons have come to object against the Courts action for their eviction.
17. It is settled position of the law that if any person or persons in breach of the order of Court comes in possession in a suit property they do not acquire any right or authority and they are to be dealt with amongst other by passing the order of eviction and further with an appropriate order of punishment. In this connection the decisions of the High Courts reported in AIR 1986 Cal 220 are good enough to be referred to.
"34. So, I am of the view that defendant No. 1 had certainly in breach of the order of status quo brought a number of persons namely Nikita CS DJ NO.8479/2016 page 82 of 183 Chokhani on the 1st floor, Saraf International on the 2nd floor; Modi Olivetti on the 3rd floor, who subsequently went away in view of the order passed by this Court; Rajlaxmi Merchants on the 4th floor; A. Agarwal on the 5th floor; S. K. Goenka and M. L. Dewan on the 6th floor.
35. The aforesaid persons had taken possession from defendant No. 1 directly who has in complete breach of the order of status quo passed by this Court changed the hands of possession then. Therefore, those persons and/or any other persons subsequently who took possession, have taken possession in the suit premises illegally through the intermediaries, who too in their turn originally took possession from the defendant No. 1 illegally during pendency of the suit. I am of the view that the order of status quo though expressly binds the parties the same is applicable to the assignee and/or transferee who subsequently had taken possession, because whatever clog being operative against the transferror is also applicable against transferee too.
36. It is the primary and paramount obligation of all the parties particularly defendant No. 1 to see that order of status quo is maintained. So the defendant No. 1 was obliged to see that there should not have been any change of possession either through its assignee and/or transferee or through anybody else. It is absurd to suggest that order of status quo does not bind intermediary third parties.
37. Ignorance of the order of status quo of the third parties is of no defence to remain in possession and/or occupation, where the original transferee was restrained from parting with possession. From the documents annexed to the affidavit of objectors, which are almost CS DJ NO.8479/2016 page 83 of 183 identical in nature, I find every body has traced his right of occupation from the defendant No. 1 and, as rightly argued by Mr. H. K. Mitra, in the agreement itself it appears that all the occupants had and have specific knowledge of pendency of the suit. Had it been a case of bona fide transaction of taking possession then each of them should have carried out searches and enquiries into the records of this case as to whether any prohibitory order of injunction in any form was there or not. There is no such whisper that such searches were made. It is stated in the affidavit that large number of agreements were entered into between the numbers of intermediaries, however, such agreements have not been disclosed nor filed. In absence of such agreements I think the other so called intermediaries are imaginary and/or fictitious.
38. I find considerable force in the arguments of Mr. H. K. Mitra that with the order of injunction/status quo the intention of the Court was to prevent transfer of any portion of the suit premises. The transfer has been effected in favour of the present occupiers after the orders of status quo and injunction are passed and are therefore in derogation and violation of the said orders too. As such no right could lawfully be nor indeed was created in favour of the third party occupants in breach of the order of status quo. In support of my observation I find the decision of the Supreme Court rendered in case of Krishna Kumar Khemka v. Grindlays Bank PLC, (1990) 3 SCC 669 : (AIR 1991 SC 899 ).."
41. In my view such contention is advanced in desperate attempt to legalize an illegal act. Possession was taken during this period by the persons playing mischievous tricks and to circumvent the Courts process. When the order of learned trial Judge is affirmed by the Appeal CS DJ NO.8479/2016 page 84 of 183 Court though stay was granted during the pendency of the matter, effect of the same will relate back to the date on which it was passed. Therefore, the possession taken during this period by the persons are deemed to have been in complete breach of the order of Justice Mrs. Pal as well as the order of Justice Sen, and further disturbing the possession of the Court through Receiver.
42.Therefore, I uphold the contention of H. K. Mitra Senior Advocate who is appearing with Mr. Sandwip Mukherjee, Advocate that the objectors who have filed their affidavits and other persons who are found to be in possession excepting Regard Sarees, are held to be in illegal possession and occupation.
44. The Court has passed an order for protecting and preserving properties by appointing Receiver to take possession, if such possession is disturbed by any of the parties or by third party or parties, to the suit the Court shall see in exercise of its inherent power the status on the date of passing interim order is restored. Order of the Court is meant for compliance not for violation either by the parties or by anybody else. If any third party has violated the order of status quo which may not be binding then the parties at least the defendant No. 1 should have come before this Court to tell that the status quo could not be maintained. The plaintiff has come forward to draw the attention of the Court complaining status quo having been breached. Moreover third party cannot get any benefit of illegal act or omission....
45. By reason of the aforesaid fact none of the objectors nor even the persons excepting Regard Sarees are entitled to remain in possession and they are liable to be evicted on this application. Therefore, I CS DJ NO.8479/2016 page 85 of 183 overrule their objections. Accordingly I direct all the persons who have filed their objections namely M/s. Nirmal Creations, Savera Enterprises, Kripa Fashions Pvt. Ltd., M/s. Ridhi Sidhi Sarees Pvt. Ltd., M/s. Chitrakar Apparels Pvt. Ltd., M/s. Sarbani Sarees Pvt. Ltd., M/s. Nirmal Fashions Pvt. Ltd., M/s. Rajlakshmi Merchants Pvt. Ltd. and M/s. Swastika Sarees Pvt. Ltd. to vacate their respective portions within one month from the date of communication of this order. On vacating, the Joint Receiver shall take physical possession, failing which the Receivers are directed to evict them with the help of the local Police Station and costs of such Police assistance shall be realized by the Receivers and/or the Police authority from the aforesaid persons. Those persons who have not filed their objections are also to be evicted by the Receivers with the help of the Police if possession is not handed over to them."
218. PRAVEEN GARG V. ORIENTAL BANK OF COMMERCE & ANOTHER 128 (2006) DLT 811; 2006 (87) DRJ, HON'BLE MR. JUSTICE R.S. SODHI:
" 5. It appears that the said injunction order was brought to the notice of Recovery Officer i.e. respondent No. 2 and it was also informed to him by the Bank that after the grant of stay by the Civil Court, further proceedings should be adjourned. The Recovery Officer, i.e. respondent No. 2, however, in complete disregard and gross contempt of the Civil Court held that since he is personally not a party in the civil proceedings before the Faridabad Court, the said injunction order was not binding on him. He further observed that only the Supreme Court or the High Court exercising jurisdiction under Constitution of India can have overriding CS DJ NO.8479/2016 page 86 of 183 jurisdiction and he decided to disregard and ignore the injunction order of the Civil Court and directed the auction which was scheduled to be held on 2nd May, 2005. A copy of the said order dated 2nd May, 2005 has already been annexed as Annexure P-2.
3. It is contended by Counsel for the petitioner that this is a strange case where in spite of a restraint order passed by a Court of competent jurisdiction, the Recovery Officer should assume himself to be an extra constitutional authority and claim himself not to be bound by a judicial order, went on to auction a plot of land against which the debt stood discharged. He contends that the Recovery Officer had no jurisdiction to proceed with the matter when a Court of competent jurisdiction had granted an injunction against the sale of the property. He also contends that the Bank had brought this fact to the notice of the Recovery Officer well in time. He contends that subsequently even the debt had been discharged by the judgment-debtor and the scenario that has emerged is that the Recovery Officer while violating the orders of the Court has recovered twice over and more.
6. The question that arises for my consideration is whether the Recovery Officer in view of a stay order by the competent Court could have proceeded with such an auction and whether such an auction which then creates a title, can be set aside. I am of the opinion that this aspect of the matter has already been dealt with by the Supreme Court in Surjit Singh and Ors. v. Harbans Singh and Ors., (1995) 6 SCC 50] , where the Supreme Court has laid down the law in paragraphs 3 and 4 thereof. From the law enunciated by the Supreme Court it is clear that sale of property is non est. The Recovery Officer had no right to subject CS DJ NO.8479/2016 page 87 of 183 the property to sale. Consequently, any auction pursuant thereto would be of no consequence."
219. While vehemently arguing the case of the plaintiff, the Ld. Counsel has submitted on behalf of the plaintiff that, this Court may be pleased to:
Declare the documents purported Power of Attorney (GPA), Possession Letter, affidavit, Will allegedly executed by the plaintiff in favour of defendant no.1 dated 27.01.2006 (notarised on 07.02.2006) and all subsequent documents pertaining to property in question to be declared as null and void, void-ab- initio, non-est Injunct the D-1 to D-4, including their successors/ attorney holders etc. from using any documents pertaining to the property in question.
Order for possession of the property in question to the Plaintiff (now deceased) his successor of property in question. Order for possession from the court, as the portions of the property i.e first, second, and fourth floor attached by the Hon'ble Court, to be handed over to the successor of the Plaintiff.
Order for possession of ground floor of the property to the successor of the Plaintiff.
Pass an order to initiate of contempt proceedings against the Defendant no. 1 to 4 , D-5 to 9 for deliberately violation of the court order of injunction dated 05.03.2013.
CS DJ NO.8479/2016 page 88 of 183 Order for cost of suit in favour of the plaintiff/ his successor.
220. PER CONTRA, it has been submitted on behalf of the defendants as follows:
SUBMISSIONS OF DEFENDANTS NO. 1 - 3 RUNNING INTO 43 PAGES:
221. It has been submitted on behalf of the defendants' no.1 to 3 as follows:
222. The present Suit was filed by the Plaintiff, Lt. Sh. Chattar Singh Saini against the Defendants herein (1-5) during his lifetime and the summons were issued to the Defendants. Upon receipt of the summons in the present Suit, the defendant Nos.1, 2 and 3 filed their Written Statement wherein they raised Preliminary Objections to the Suit of the Plaintiff. The alleged claim of the suit for declaration, permanent injunction and mandatory injunction initially filed by the plaintiff Lt. Chattar Singh Saini was thereafter, amended and the relief of possession was also incorporated by the Ld. Predecessor Court in the year 2019.
CASE OF THE PLAINTIFF:
223. As per the defendants no. 1-3 (being represented by Defendant no.2 Sanjeev Saini), the Plaintiff, Lt. Sh. Chatter Singh Saini (now being represented by LR Ravi Prakash Saini) filed the suit seeking the declaration of the documents i.e. General Power of Attorney, Possession Letter, Affidavit etc. dated 27.01.2006 as null and void as the same were obtained by the defendants no. 1 to 4 by playing fraud. The plaintiff CS DJ NO.8479/2016 page 89 of 183 (during his lifetime) further asked for mandatory injunction as prayed in the plaint.
224. As per the defendants, Late Sh. Chatter Singh claimed that he is the owner of the property in question i.e. the Back Portion of the Property bearing No.482-C forming part of Khasra No.217 situated in Hardevpuri, Masjid Moth, Tehsil, Hauz Khas, New Delhi-110048. The same is pleaded in para No. 3 of the plaint as alleged by the plaintiff.
225. The Plaintiff, admittedly, had two sons namely Shri Ravi Prakash Saini and Shri Hoshiyar Singh Saini. Shri Hoshiyar Singh Saini died in the year 1999 and thereafter in order to accommodate his wife and two sons namely Shri Sanjeev Saini and Shri Ajay Saini, the Plaintiff permitted them to reside in the back portion of the above said property as alleged by the plaintiff.
226. In the year 2006, the defendant nos. 1, 2 & 3 started illegally raising the construction in the common open area between the above mentioned front portion and back portion of the above said property. The Plaintiff tried to reason out with the above said Defendants, but to no avail. Failing which, the Plaintiff instituted the suit for permanent Injunction being Suit No.242 of 2007 entitled "Sh. Chatter Singh V/s Smt. Parmeshwari Devi & Ors." against Defendant No.1 to 3 and Sh. Ravi Prakash, the younger Son of Plaintiff as alleged by the plaintiff.
227. That the above mentioned suit was later on compromised between the Plaintiff and Defendant Nos.1 to 3 vide the Order dated 14.09.2007, passed by then Ld. Court of Shri D.K. Sharma, the then Ld. CS DJ NO.8479/2016 page 90 of 183 Civil Judge, Tis Hazari Courts, Delhi.
228. It has been averred by the plaintiff that defendant no.4 is a local property dealer residing in the nearby vicinity who has the history of grabbing the property of innocent persons. It is submitted that the defendant no.4 is investing his money in the illegal construction raised in the suit property with an intention to create third party interest in the suit property as alleged by the plaintiff.
229. As has been submitted by the defendants no. 1 to 3, the defendants no.1 to 3 in connivance with defendant no.4 with a malafide common intention to usurp and grab the above said property of the Plaintiff started raising illegal construction in the back portion as well as in the open area between the two portions of the said property without informing and without the permission of the Plaintiff, and without obtaining any sanction plan or permission from any statutory authority, whatsoever as alleged by the plaintiff.
230. When the Plaintiff objected to the above said illegal construction, to the utter shock and surprise of the Plaintiff, the defendants no.1 to 4, informed the Plaintiff that 'he' had already executed many documents in favour of defendant no.1, thereby handing over the possession and ownership to defendant no.4. The defendant no.1 further stated that the plaintiff had, executed a General Power of Attorney, WIII, Possession Letter and Affidavit etc, in favour of the defendant no.4 and now she cannot do anything.
PRAYERS IN THE ORIGINAL PLAINT:
CS DJ NO.8479/2016 page 91 of 183
231. The Plaintiff prayed for the following reliefs in the original Plaint:
"(i) Pass a Decree of declaration in favour of the plaintiffs and against the Defendants, thereby declaring that the documents namely Power of Attorney, affidavit, possession letter etc. all dated 27.01.2006 being obtained by fraud and are null, void and non-est in law and consequently be cancelled: and/or;
(ii)Pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants, their agents, assigns, attorney holder, etc, from raising any construction on the suit property of alienating, wasting or creating third party interest in the suit property and / or;
(iii) Pass a decree of mandatory injunction in favour of the Plaintiff and against the Defendant No.5, thereby directing the Defendant No.5 to take immediate action as per the building by laws including the demotion of the illegal construction raised on the suit property by the Defendant No.1 to 4."
232. The Plaintiff preferred an Application under Order VI Rule 17, CPC for amendment of the Plaint, which was allowed vide order dated 29.01.2019. The Amended Suit was accordingly taken on record.
PRAYERS IN THE AMENDED PLAINT "(i) Pass a decree of declaration in favour of the plaintiffs and against CS DJ NO.8479/2016 page 92 of 183 the defendants, thereby declaring that the documents namely power of attorney, affidavit, possession letter etc. all dated 27.01.2006 being obtained by fraud and are null, void and non-est in law and consequently be cancelled: and/or.
(ii) consequently pass a decree of possession in respect of suit property, bearing no. 482-C, Hardevpuri, Village Masjid Mod, Tehsil Hauz Khas, New Delhi in favour of the plaintiff and against the defendants and thereby directing the defendants to handover the vacant and peaceful physical possession of the suit property to the plaintiff; and/or
(iii) Pass a decree of permanent injunction in favour of the plaintiff and against the defendants, thereby restraining the defendants, their agents, assigns, attorney holder, etc, from raising any construction on the suit property of alienating, wasting or creating any third party interest in the suit property and/or:
(iv) pass a decree of mandatory injunction in favour of the plaintiff and against the defendant no.5, thereby directing the defendant no. 5 to take immediate action as per the building by laws including the demotion of the illegal construction raised on the suit property by the Defendant No. 1 to 4."
DEFENSE OF THE DEFENDANTS NO. 1 TO 3:
PRELIMINARY OBJECTIONS:
CS DJ NO.8479/2016 page 93 of 183
233. It has been submitted on behalf of the Ld. Counsel for the defendants no.1 to 3 that the present suit of the plaintiff is not maintainable as the plaintiff has not filed the present suit as per the Specific Relief Act and also the same is not maintainable under section 42 of the Specific Relief Act. It is submitted that the plaintiff has taken the other objections i.e. Objection No. 5 and 6. As averred further, the suit is not maintainable due to the non-joinder and misjoinder of parties because the property situated in Khasra No. 52, 53, 54, Hardevpuri, Majid Moth,New Delhi.
234. As averred, the said property initially belonged to Late Sh.
Hardeva, Caste Saini. After the death of Late Sh. Hardeva the said property was inherited by his sons Sh. Sher Singh. It is further submitted that the present suit is barred by time.
235. The Plaintiff has not come with clean hands before this Court as he has concealed the real facts from this Court. Not only this, the plaintiff acted unfairly against the defendants no. 1 to 3. As such, the Plaintiff is not entitled to any equitable relief against the defendant no.1 to 3. Hence, the Suit of the Plaintiff is liable to be dismissed.
236. It has also been submitted that the Plaintiff has already raised unauthorized construction against the bye-laws of the MCD. Hence, he is trying to mislead this Court by way of filing a false Suit against the defendants no. 1 to 3. As such, the Suit of the Plaintiff is liable to be dismissed with costs.
237. It has been submitted on behalf of the defendants no. 1 to 3 that CS DJ NO.8479/2016 page 94 of 183 the property in question is worth more than Rs.70,00,000/- (Rupees Seventy Lac), and the plaintiff has failed to pay ad-valorem Court fees. As has been averred the property in question came into the ownership and possession through LRs of Late Hardeva caste Saini in favour of the husband of the defendant no.1 Late Shri Hoshiyar Singh.
238. Sh. Hoshiyar Singh, husband of Late defendant no. 1 died in 1999, and left behind his legal heirs and after the death of the said Sh. Hoshiyar Singh, the legal heirs became the owner of the said property in question. As such, the Plaintiff has no right, title and interest in the property in dispute in any manner, whatsoever.
239. The defendant no.1 had entered into an MOU and agreed to repay the amount to the defendant no.4, but the defendant no.1 failed to repay the amount to defendant no.4 as per the MOU. It is submitted that the Plaintiff and his son encroached the passage and the same is covered by erecting a lanter over the passage which belongs to the defendants no.1 to 3, as shown in the Site Plan at point E to F.
240. It is further submitted that the Plaintiff himself has raised the illegal construction which is shown in blue colour in the site plan and further raised the construction over the open passage in the property of the answering defendants. Hence, the suit of the Plaintiff is liable to be dismissed.
241. It is submitted that the property i.e. 482C, situated in Khasra Nos.52, 53, 54 at Village Masjid Moth known as Hardev Puri, Delhi. The property in question is very old and the defendants no. 1 to 3 had CS DJ NO.8479/2016 page 95 of 183 made some minor repairs and renovation in some portion of their said house and as such, the question of raising the unauthorized construction does not arise at all.
242. The allegations raised by the Plaintiff are false and incorrect. The attorney dated 27.01.2006 was executed by the plaintiff in favour of the defendant no.1 with his free will and without any pressure. The question of fraud upon the plaintiff by the defendants does not arise at all.
243. It is submitted that the Plaintiff has failed to provide the proper site plan of the portion as alleged by the Plaintiff, as such, the allegations raised by the plaintiff are concocted just to get the benefit of his own wrong and therefore, the Suit of the Plaintiff is liable to be dismissed with costs.
DEFENSE OF THE DEFENDANT NO.5/MCD (MENTIONED IN THE WRITTEN SUBMISSIONS OF DEFENDANTS NO. 1 TO 3)
244. The Suit of the Plaintiff is barred by the Provisions of Section 477/478 of the DMC Act, 1957 for want of service of statutory notice upon the defendant no.5 and as such, the suit as filed is not maintainable and is liable to be dismissed qua the defendant no.5.
245. Even otherwise, the suit of the Plaintiff is not maintainable in view of the facts that the suit property bearing No. 482, C, Hardev Puri, Village Masjid Moth New Delhi, was inspected by the field staff of the defendant No.5 / MCD on 22.11.2011 and during the inspection, it was CS DJ NO.8479/2016 page 96 of 183 noticed that owner / occupier of the suit property has raised unauthorized construction in the shape Ground floor to Fourth floor and mumty at terrace floor in the rear portion. However, the same has been booked, vide file No. 132/UC/B-I/SZ/11 dated 16.11.2011, under section 343/344 of the DMC Act.
DEFENDANT NO.4 FILED THE WRITTEN STATEMENT
246. The Defendant no. 4 has taken the preliminary objection that no cause of action arose nor proper court fee filed and taking the plea the suit is not maintainable on the ground the same is 41(h) of Specific Relief Act.
ISSUES FRAMED ON 03.10.2019:
247. That from the pleadings of the parties, this Court framed the following:
1. Whether plaintiff is entitled to decree of declaration as prayed in clause (i)? OPP
2. Whether plaintiff is entitled to decree of possession as prayed in clause (ii)? OPP
3. Whether plaintiff is entitled to decree of permanent injunction as prayed in clause (iii)? OPP
4. Whether plaintiff is entitled to decree of mandatory injunction as CS DJ NO.8479/2016 page 97 of 183 prayed in clause (iv)? OPP
5. Relief.
248. It has been submitted on behalf of defendants no. 1 to 3 that during the pendency of the case, Sh. Chattar Singh Saini passed on, and his LRs were brought on record.
EVIDENCE OF THE PARTIES/ RECORDING OF TESTIMONY:
249. It has been submitted by the Ld. Counsel for the defendants no.1 to 3 that the parties led the evidence in the aforesaid Suit. Sh. Ravi Prakash Saini, s/o Late Sh. Chattar Singh Saini appeared and filed his Evidence by way of Affidavit before this Court on 21.11.2019. The Evidence Affidavit was exhibited as EX. PW1/A and the same was tendered by way of Evidence on 21.11.2019. As per the Evidence Affidavit of PW-1, the respective documents of the Plaintiff were exhibited before this Court.
250. Upon objection, the same have been re-exhibited and marked. PW-1 was cross examined and the relevant portions of his cross examination are as under: -
"One Sh. Hardeva belongs to our Village Hardevpuri, presently known as "Gautam Nagar". It is correct that there is no Sale Deed in the name of any of the residents in the Village. Consequently, the property in question is also not having any Sale Deed in the name of my father, Late Sh. Chattar Singh Saini.
CS DJ NO.8479/2016 page 98 of 183 It is correct that my brother, Sh. Hoshiyar Singh was also residing in the suit property in the life time.
I know that Late Parmeshari Devi, w/o Sh. Hoshiyar Singh.
I did not know whether my father, Late Sh. Chattar Singh Saini had executed or not executed in favour of Smt. Parmeshari Devi some requisite documents i.e. Will, GPA, Agreement to Sell, Affidavit I do not know whether Late Sh. Chattar Singh Saini even filed Suit against Hoshiyar Singh. I do not know whether Notice was given to Late Sh. Hoshiyar Singh to vacate the said property.
I do not know whether till October, 2011, my father filed a Suit against Parmeshari Devi in respect of the suit property.
It is correct that I filed a suit in the year 2006 against late Smt. Parmeshwari Devi. (Vol. For encroachment of common passage, light and shaft). The suit was decreed as compromised decree in the same year. The certified copy of suit No. 906/06 along with supporting affidavit, site plan and order sheet from 07.03.2006 upto 20.04.2006 have been filed along with one deed of compromise dated 07.04.2006 and the same have been exhibited as Ex.PW-1/59 (Colly) (running in 23 pages) filed by counsel of the LRs of the Defendant No. 1 and the Defendant No. 2&3.
I have not lodged any complaint to any competent authority with regard to the suit property in the present suit, but the complaints are made by my father late Shri Chattar Singh.
CS DJ NO.8479/2016 page 99 of 183 I cannot say whether my father had given any notice to late Smt. Parmeshwari Devi to vacate the suit property but I have never given any notice to late Smt. Parmeshwari Devi to vacate the suit property.
It is correct that Shri Babu Ram is my relative."
251. During the cross examination, PW-1 was confronted with one Judgement dated 09.02.2016, passed by Ms. Vrinda Kumari, , the then Ld. ASJ, South Delhi. The revision petition filed by Sh. Chattar Singh Saini was dismissed. Sh. Chattar Singh Saini filed the revision against the dismissal of the complaint of the MM which was already marked.
It is correct that I filed a suit in the year 2006 against late Smt. Parmeshwari Devi. (Vol. For encroachment of common passage, light and shaft).
252. As per the Ld. Counsel for the defendants, The Ex. PW/59 (Colly) is admissible and proves the following facts on record:
253. The Suit No.906/2006 titled as "Ravi Prakash Saini vs. Parmeshari Devi & Ors" for Permanent Injunction was filed on 07.03.2006 and the same was decreed as compromised on 07.04.2006. The parties to the said Suit (i.e. Ravi Prakash Saini, Parmeshwari Devi, Sanjeev Saini and Ajay Saini) jointly filed a joint Application under Order XXIII Rule 3 read with Section 151 CPC for passing of a compromise Decree in the aforesaid Suit.
254. The statements of the parties were recorded on 07.04.2006 before the Court of Sh. Raj Kumar, the then Ld. Civil Judge, Delhi. Vide CS DJ NO.8479/2016 page 100 of 183 the statement dated 07.04.2006, the PW-1 i.e. Sh. Ravi Prakash Saini categorically stated that the portion, which is under the possession of the Defendant, are given. The portion of the defendant as shown in the site plan in blue colour accompanying EX. PW/59 (COLLY) at page No. 7. (Verbatim).
255. As per the said Suit filed by the PW-1 i.e. Sh. Ravi Prakash Saini, it is proved in the document EX. PW-1/59 (COLLY) at page no.2 that the Plaintiff is the owner of the half portion of the property No.482, Hardevpuri, Masjid Moth, New Delhi as shown in black colour in the Site Plan attached and the Defendant being the LRs of Late Sh. Hoshiyar Singh are the owners of another half portion of the said property as shown in blue colour in the Site Plan by virtue of the Family Settlement done by Chattar Singh Saini.
256. It is submitted that after the settlement was arrived in case titled as Ravi Prakash Saini Vs Parmeshwari Devi. Parmeshwari Devi being the owner was in possession of the back portion of the property.
257. That after division of the property as per the Family Settlement, the Plaintiff constructed his property. The aforesaid Suit was filed by Sh. Ravi Prakash Saini and in the said Suit, Sh. Ravi Prakash Saini filed his Affidavit and the relevant portion of the same is as under:
"I am the Plaintiff in the accompanying Suit and conversant with the facts of the case, competent to file the Affidavit. "
258. As such, Sh. Ravi Prakash Saini has admitted that the Family Settlement has been arrived during the lifetime of Late Sh. Chattar CS DJ NO.8479/2016 page 101 of 183 Singh Saini. Accordingly, the back portion of 482-C, Hardevpuri, Village Masjid Mod, Tehsil Hauz Khas, New Delhi came to be owned by Late Smt. Parmeshwari Devi.
259. In the year, 2006, defendants no.1, 2, 3 raised some construction.
260. PW-1 filed an additional affidavit, which was exhibited as EX.PW-1/B.
261. It was stated by PW-1 as follows;
"I do not remember the date of preparing the Site Plan i.e. the part of the Ex. PWI/59 (Colly). It is correct that the PW1/D1, the Site Plan of the suit property is correct."
262. One Compromise Deed was arrived at between Sh. Ravi Prakash Saini and the defendants No. 1 and 2 in the aforesaid Suit. In the Compromise Deed, it was specifically agreed that the Plaintiff shall not interfere in the construction, which shall be carried out by the defendants nos. 1 to 3 upon the space belonging to them in any manner.
263. PW-1, Ravi Prakash also agreed that they will withdraw the Complaint made against the defendants therein. The aforesaid Suit was disposed of in terms of the Compromise arrived at by and between Sh. Ravi Prakash Saini, the PW-1 herein and the defendants no. 1 to 3.
264. It is submitted that according to the cross examination, the Plaintiff has failed to prove the photographs filed by the Plaintiff in respect of the suit property. PW-1 has failed to identify the photographs filed by the Plaintiff in respect of his case and also failed to prove the CS DJ NO.8479/2016 page 102 of 183 photographs ie EX.PW-1/22 to EX.PW-1/54. The photographs are not signed and verified by PW-1 nor by any person.
265. It is submitted that the Affidavit of PW-1 filed and tendered on 21.11.2019 in which the exhibit document PW-1/3 to PW-1/58 are the exhibited A to Mark PW-A/A. The original document has not been filed nor proved by the PW1 against the answering defendant.
266. The Ld. Counsel for the defendants no.1 to 3 have stated that the plaintiff stated as follows:
"It is correct that my father did not get any permission from the MCD for the built up portion, which I am residing. It is correct that my father has not transferred the suit property in my name by way of Sale Deed or Gift Deed. It is correct that my father used to sign in Hindi."
267. It has been submitted on behalf of the Ld. Counsel for the defendants that the document which is EX.PW-1/6 does not bear the signature of Chattar Singh and the same was objected on the grounds of mode of proof by the defendants.
268. It has been stated on behalf of the defendants that Ravi Prakash failed to bring the interested witness. The alleged Will is not part of pleading.
269. In the alleged Will, there is no signature of Late Sh. Chattar Singh Saini and there is only thumb impression shown and therefore, the Will in question filed by the present LR of Late Sh. Chattar Singh Saini is forged and fabricated and the same is not admissible at this CS DJ NO.8479/2016 page 103 of 183 stage. It is on the face of record that there is no attesting witness was called by the plaintiff to prove the will filed by Sh. Ravi Prakash Saini. The same has not been proved by the plaintiff.
270. It has been submitted on behalf of the defendants that the Plaintiff has thus miserably failed to establish the issue as framed by the Court and also failed to prove the ownership of the property in question, which is under the possession of the defendants nos. 1 to 3. The Plaintiff has further failed to bring the best evidence in his favour during the trial of the case and therefore, the testimony of the PW-1 is not admissible. The issue framed as such stands disproved. It is apt to submit here that the Plaintiff has brought the other evidence by calling the record of the documents and the same has not been proved as per the evidence of other witnesses.
271. As submitted, as per the Evidence Act, if the evidence is out of pleadings, the same shall not be considered in favour of the witness. As per the Affidavit tendered by the PW-1 in para no.3 of the Evidence Affidavit, the same is not part of the pleadings. The other portions i.e. the para no.35 is also not part of the pleading and the para nos.36, 37, 38 and 40 are also not part of the pleadings.
272. As averred, the testimony of the PW-1 is not trustworthy. There are contradictory statements made by PW-1 before this Court. It is on the face of the record that the Plaintiff failed to prove the prima facie case in his favour.
273. As per the claim set up by the plaintiff for the cancellation of the CS DJ NO.8479/2016 page 104 of 183 document dated 27.01.2006, the present suit was filed by the plaintiff in the year 2011 after expiry of 5 years.
274. It has been submitted that while the original plaintiff Lt. Sh. Chattar Singh Saini was aware about the documents dated 27.01.2006, and there is no complaint made by Late Sh. Chattar Singh Saini w.e.f. 27.01.2006 upto 09.07.2011. Therefore, the alleged complaint made by him is after thought. As per the claim set up by the plaintiff in Para No.3 of the plaint, Chattar Singh Saini is claiming that he is the owner, and in possession of the property bearing No. 482-C, Rear Portion, 70 Sq. Yds., which is situated in Khasra No. 217, Hardevpuri, Village Majid Moth, New Delhi. As per the record, there is no document pertaining to the aforesaid property filed by the plaintiff and/or any title documents in favour of the plaintiff.
275. As per the plaint, the suit property is mentioned as 482-C, Rear Portion, 70 Sq. Yds., which is situated in Khasra No. 217, Hardevpuri, Village Masjid Moth, New Delhi, while the property 482-C,as averred, is actually situated in Khasra No. 52, 53, 54, Hardevpuri, Gautam Nagar, Village, Majid Moth, Delhi.
276. As averred, not only this, but no sale deed has been filed with respect to the property bearing No. 482C, Rear Portion, 70 Sq. Yds., which is situated in Khasra No. 217, Hardevpuri, Village Majid Moth, New Delhi. Furthermore, also no sale deed has been filed with respect to the property 482C, situated in Khasra No. 52, 53, 54, Hardevpuri, Gautam Nagar, Village, Majid Moth, Delhi.
CS DJ NO.8479/2016 page 105 of 183
277. As per page no. 28 of the documents of the plaint, the plaintiff made the complaint for demolition with respect to the property No.482 which is under the possession of Late Sh. Chatter Singh Saini and Sh. Ravi Prakash Saini.
278. As per the plaint set up by the plaintiff and document filed by the plaintiff, the plaintiff himself admitted that there is unauthorized construction in the Portion of property No. 482 in which the plaintiff is residing.
279. The affidavit of DW-1 was filed and the same was tendered. The Khasra Girdawari filed by the defendant no.1 is exhibited as EX.DW-1/I and the document i.e. the photograph filed by the defendant nos. 1 to 3 also have been proved. There is no cross examination made by the Plaintiff during the evidence of the DW-1 and the document EX.DWI/3 i.e. the letter issued to the Zonal Engineer (West), South Zone, Green Park, Delhi being the NOC issued by Late Sh. Chattar Singh Saini in favour of Late Sh. Hoshiyar Singh and vide No.3 of the letter, which is the confirmation that the portion was owned and in possession of Late Smt. Parmeshwari Devi and her Legal Heirs, Successors are the owners and in possession of the same.
280. With respect to the documents filed by defendant no.1. i.e. the EX.DW-1/2 to EX.DW-1/16, there is no suggestion or cross examination by the Plaintiff, as such, the same are proved as per the Indian Evidence Act and the same is writ large from the following:
"That as per the cross examination by the Plaintiff, it is wrong to CS DJ NO.8479/2016 page 106 of 183 suggest that the suit property is not situated in Khasra Nos.52, 53 and 54, Hardevapuri, Masid Moth, Delhi Therefore, as per the cross examination, the onus got shifted on the Plaintiff that the suit property is situated in Khasra No.217.
Q. How do you claim your ownership Ans: The suit property bearing 482 obviously is to be divided in two sons, hence, we are the owner of the half portion of the property.
This fact confirms as per the statement under Order XXIII Rule 3 CPC in Suit titled as "Ravi Prakash Saini vs. Parmeshari Devi & Ors".
Further, suggestion, it is wrong to suggest that the Agreement to Sell, Possession Letter etc dated 07.02.2006 are forged and fabricated.
281. Therefore, as per the suggestion, the onus was shifted on the Plaintiff to prove that the said documents are forged.
282. The plaintiff failed to bring the best evidence with regard to the unauthorized construction. The Plaintiff did not examine any witness from the Office of the MCD to call the records with respect to unauthorized construction. No evidence was placed on record regarding the unauthorized construction. The plaintiff further failed to bring the evidence on the GPA, Agreement to Sale, etc., at the time of the evidence.
283. The Plaintiff set up a case against the defendant nos.1 to 3 in respect of the suit property as per para no.3 of the Plaintiff and in this CS DJ NO.8479/2016 page 107 of 183 regard, there is a prayer in the Application under Order XXXIX Rule 1 & 2 r/w Section CPC against the defendants no. 1 to 3 in which the interim relief was sought for restraining the defendants nos. 1 to 4, their agents, assignees etc from raising any construction and from alienating & creating any third party possession in respect of the suit property.
284. In this regard, a statement was recorded before the Ld. Predecessor Court on 05.03.2013. The said statement was recorded without prejudice to the rights of the parties. Thereafter, a document was filed by the Plaintiff i.e. the alleged document in respect of the 4th Floor as well as the documents executed in the year, 2010-11 qua the 4th Floor in which it is indicated that the said document and the GPA, Agreement to Sell were executed in favour of Subhash in respect of 4th Floor and the same were executed in 2010 respectively. As such the same are prior to filing of the Suit.
285. During the course of trial of the Suit, the Plaintiff filed an Application under Order XXXIX Rule 2A CPC being the Contempt Application which was decided on the respective dates. It is submitted that as per the written statement filed by the defendant, as per the inspection carried out by the MCD, there is Ground floor to Fourth floor and Mumty at terrace floor in the rear portion.
286. During the pendency of the case, this Court issued respective directions to attach/seal the portion of the First Floor, Second Floor and Fourth Floor. Thereafter, the other Defendants filed an Application to join the proceedings and the same was allowed. It is further submitted that thereafter, the defendants no.8 and 9 filed an Application, which CS DJ NO.8479/2016 page 108 of 183 was dismissed. Thereafter, they filed a Petition before the Hon'ble High Court of Delhi at New Delhi, and they were impleaded as defendants in the present case.
287. The Evidence of the defendants no. 1 to 3 was filed by Shri Sanjeev Saini. The Affidavit of Evidence filed by the Defendant no. 1 to 3 through attorney Sanjeev Saini. The said witness filed the Affidavit on 07.10.2022.
288. As per the document EX.DW-1/3 i.e. document No objection issued by Chattar Singh to the Zonal Engineer South Zone i.e. No Objection Certificate in which Late Shri Chattar Singh has admitted that Hoshiyar Singh is the owner of the portion which is under the possession of the defendants.
289. There is no cross examination by the Plaintiff therefore the document stands proved. The Photograph EX.DW-1/4 TO EX.DW-1/16 is also proved. Further, as submitted by the defendants the document EX.DW-1/2 'Mark A' stands proved.
290. As per the cross by defendant no.4 it is proved that the GPA, Will of Parmeshwari Devi has been executed in favour of D4 prior to filing of the Suit.
THE CROSS BY THE PLAINTIFF
291. The suggestions made by the plaintiff in respect of DW-1 shifts the onus upon the plaintiff. Relevant Portion as under:
"It is wrong to suggest the Suit Property is not situated at Khasra No. CS DJ NO.8479/2016 page 109 of 183 52, 53 & 54 at Hardevpuri Masjid Moth, New Delhi. 482 C is the number of the back portion of the said property."
292. The onus shifted upon the plaintiff to prove the Khasra number back portion of 217. The other relevant portion as under:
"In the year 2007/2008 the backside of the suit property was further renovated and Babu Ram was hired for this purpose of renovation process Ground, Ist 2nd and 3rd floor."
293. The other relevant portion as under:
"Question: Do you possess any document with regard of the ownership of this passage?
Ans. In the year 2006 my grandfather made a will and GPA and It is mentioned in these documents. Both these documents executed in my presence."
294. The other relevant portion in the cross as under:
"Question: How you claim yourself as the owner of the Suit Property?
Ans. The Said property bearing 482 obviously is divided two sons hence we are the half owners of the said property.
SUGGESTION:
It is wrong to suggest that GPA, agreement to sell, possession letter, all documents are forged and fabricated document.
The relevant portion i.e. my father died in the year 1999. In the year CS DJ NO.8479/2016 page 110 of 183 2005/2006 backside of the said property in the name of my mother by my grandfather."
295. The Plaintiff failed to establish the case in his favour as per the aforesaid cross examination. There is onus upon the plaintiff whether the property in dispute situated in Khasra no. 217. There is no document filed by plaintiff in this regard.
296. DW3 (official witness) appeared Shri Ajeet Singh s/o Late Shri Sardar Daleep Singh appeared on 09.11.2023. The evidence was conducted and he appeared along with the record i.e. Certified copy of Registered Will, GPA which has been registered on 05.07.2011 before the sub-registrar which is EX.DW3/2 (Colly) OSR, document i.e. GPA EX.DW3/1 and DW3/2. The witness was respectively crossed by the Plaintiff. There is no suggestion by the plaintiff therefore the said document stands proved. The said document executed by Parmeshwari Devi in favour of Babu Ram in respect of the Roof of the First Floor 70 sq. yard i.e. 58, 50 sq m. property bearing 482 C forming part of khasra no. 52, 53, 54 situated at Hardevpuri Masjid moth, Tehsil Hauz Khas, Mehrauli, New Delhi.
297. There is no cross examination on the relevant point by the plaintiff therefore the evidence of DW3 stands proved and documents stand proved in favour of the defendants. The aforesaid documents have never been challenged during the pendency of the case therefore the plaintiff failed to prove his case.
298. DW-4 Shri Arvind Kumar (JA) appeared as a summoned/ official CS DJ NO.8479/2016 page 111 of 183 witness from the record room and he brought the document i.e. EX.DW4/A THE JUDGEMENT DATED 09.10.2016 CHATTAR SINGH V PARMESHWARI DEVI and the same was decided against the Late Shri Chattar Singh Saini. Late Shri Chattar Singh challenged the Judgement passed by the MM in which the complaint case was also dismissed. After the dismissal of the revision petition there is no challenge by the plaintiff during his lifetime.
299. Therefore, the alleged complaint made by late Shri Chattar Singh has been disproved. As such there is no fraud established in favour of the plaintiff with regard of the document under challenge in the present case.
300. The other document filed by the plaintiff i.e. document dated 30.04.2010 in respect of the 4th Floor prior to the statement dated 05.03.2013. The aforesaid document disproved by the plaintiff. That the possession of the Defendant Nos.1 to 3 is legal as per the Family Settlement and Compromise Decree passed in Suit No.906/2006 titled as "Ravi Prakash Saini vs. Parmeshari Devi & Ors". The Plaintiff failed to prove the cause of action and Mandatory Injunction.
301. The other document filed by the plaintiff i.e. document dated 30.04.2010 in respect of the 4th Floor prior to the statement dated 05.03.2013. The aforesaid document disproved by the plaintiff. That the possession of the defendants nos.1 to 3 is legal as per the Family Settlement and Compromise Decree passed in Suit No.906/2006 titled as "Ravi Prakash Saini vs. Parmeshari Devi & Ors". The Plaintiff failed to prove the cause of action and Mandatory Injunction.
CS DJ NO.8479/2016 page 112 of 183 FAILURE TO PROVE FRAUD:
302. It has been submitted that the legal position with regard to allegation of fraud and forgery is settled that one who alleges fraud and forgery he has to prove the same. With regard to fraud, the HON'BLE APEX COURT IN UNION OF INDIA VERSUS M/S CHATURBHAI M. PATEL AND CO., 1976 (1) SCC 747, has held as under :-
"7. The High Court has carefully considered the various circumstances relied upon by the appellant and has held that they are not at all conclusive to prove the case of fraud. It is well settled that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt as per Lord Atkin in A.L.N. Narayanan Chettyar v. Official Assignee, High Court Rangoon, AIR 1941 PC 93. However suspicious may be the circumstances, however strange the coincidences, and however grave the doubts, suspicion alone can never take the place of proof In our normal life we are sometimes faced with unexplainable phenomenon and strange coincidences, for, as it is said, truth is stranger than fiction. In these 5 of 12 circumstances, therefore, going through the judgment of the High Court we are satisfied that the appellant has not been able to make out a case of fraud as found by the High court. As such the High Court was fully justified in negativing the plea of fraud and in decreeing the suit of the plaintiff."
303. The Ld. Counsel for the defendants no.1 to 3 has also submitted CS DJ NO.8479/2016 page 113 of 183 that the failure to confront DW-1 with the Plaintiff's affirmative case must go against the Plaintiff. Reliance is placed on the Judgment reported as MANU/WB/0074/1961 : AIR 1961 CAL 359 A.E.G CARAPICT V. A.Y. DERDERIAN and for ready reference, the paras 8 & 9 of the same read as under:-
"8. Failure to put the important and crucial part of the case to the witnesses coming to prove testamentary capacity must be held against the respondents. It is all the more so because the case of witness Venkat Ramiah is that as early as in October, 1956 he had told this story at Poona to Mr. Aratoon and the learned Counsel Mr. Ganguli. If that was so, then there can be no doubt that this case would have been put to the doctors and nurses who were being examined on commission in Poona itself It is also strange why then the Respondents did not have the evidence of this witness Venkata Ramiah immediately on commission at Poona and why he was kept up the sleeves to be played as a last trump as a last witness in the case when the entire evidence on the case of the propounder had been made and concluded. Lastly this course is all the more reprehensible here because witness Venkat Ramiah admits that on all his visits to the testator's room in the nursing home he found the wife present (Q.81) and if that is so then if the wife was put that case she might have denied but by keeping back this case from her, she was denied the necessary opportunity to do so, leading to failure of justice in this case.
9. The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case CS DJ NO.8479/2016 page 114 of 183 in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. lt is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the crossexamination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponents witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witness and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated."
NON-SHIFTING OF BURDEN ON TO THE DEFENDANTS
304. It has been submitted on behalf of defendants no.1- 3 that it is apt to submit that the requirement regarding "shifting of burden onto the Defendants" was in brief discussed by the HON'BLE APEX COURT IN THE CASE REPORTED AS -ANIL RISHI V. GURBAKSH SINGH (2006) 5 SCC 558, WHEREIN THE HON'BLE APEX COURT held:
that for shifting the burden of proof, it would require more than merely CS DJ NO.8479/2016 page 115 of 183 pleading that the relationship is a fiduciary one and it must be proved by producing tangible evidence. The relevant extract of the said decision is reproduced as thus: -
"8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:
"101. Burden of proof Whosever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
10. Pleading is not evidence, far less proof Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of CS DJ NO.8479/2016 page 116 of 183 proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.
11. The fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance.
XXX XXX XXX
14. But before such a finding is arrived at, the averments as regards alleged fiduciary relationship must be established before a presumption of undue influence against a person in position of active confidence is drawn. The factum of active confidence should also be established.
15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words "active confidence" indicate that the relationship between the parties must be such that one is bound to protect the interests of the other.
16. Thus, point for determination of binding interests or which are the cases which come within the rule of active confidence would vary from case to case. If the plaintiff fails to prove the existence of the fiduciary relationship or the position of active confidence held by the defendant-appellant, the burden would lie on him as he had alleged fraud. The trial court and the High Court, therefore, in our opinion, cannot be said to be correct in holding that without anything further, the burden of proof would be on the defendant."
CS DJ NO.8479/2016 page 117 of 183 (Emphasis Supplied)
305. The Ld. Counsel for the defendants no. 1 to 3 has gone on to cite another judgement of the Apex Court of India, which states as follows;
That the Hon'ble Apex Court in the Judgment reported as ADDAGADA RAGHAVAMMA AND ANR VS ADDAGADA CHENCHAMMA AND ANR ON 9 APRIL, 1963 (EQUIVALENT CITATIONS: 1964 AIR 136, (1964 SCR (2) 933) was pleased to hold;
"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".
306. The Ld. Counsel for the defendants no.1 to 3 has cited the below mentioned judgements along with the relevant paragraphs, of the Hon'ble Supreme Court of India in support of his contention:
AMAR SINGH V. THE STATE OF BIHAR, MANU/SC/0069/1971:
(1971) 3 SCC 273, The Apex Court held as under:-
"where evidence clearly discloses that : (]) the truck was being driven at a very high speed. (2) it was having no lights, (3) it was being driven without the driver sounding the horn, and (4) the visibility was very poor at that time, and there is no cross-examination on the above crucial aspects, the finding that the accident happened due to rash and negligent driving of the truck is justified."
MAHAVIR SINGH V. STATE OF HARYANA, MANU/SC/0506/2014 : (2014) 6 SCC 716 CS DJ NO.8479/2016 page 118 of 183
"16. It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised (Vide Atluri Brahmanandam v. Anne Sai Bapuji and Laxmibai v. Bhagwantbuva)"
OUTCOME OF THE EVIDENCE OF THE PLAINTIFF:
SIGNATURE OBTAINED BY FRAUD- BURDEN OF PROOF IS ON THE PARTY ALLEGING SUCH FORGERY I.E. THE PLAINTIFF:
307. It has been submitted on behalf of the Ld. Counsel for defendants no.1 to 3, as follows.
308. The Plaintiff has challenged the documents GPA, agreement to sell etc dated 27.01.2006 to be declared null and void. The said documents are a photocopy and the same are marked at the time of recording the evidence i.e. Mark K and L, Mark M & N.
309. The plaintiff failed to bring the evidence on the said document further failed to prove the fraud on the document. The plaintiff has never called witnesses on the alleged document. The plaintiff further failed to prove the fraud as per the alleged photocopy of the complaint Mark B, D, E. F, G and Mark on the said complaint. The plaintiff filed the complaint case during his lifetime before the concerned MM and the same has been dismissed on the ground that Plaintiff has failed to prove against the Answering defendant and defendant no.4, thereafter the CS DJ NO.8479/2016 page 119 of 183 Revision petition filed by Late Shri Chattar Singh during his lifetime has been dismissed by the then Ld. ASJ Delhi, the Judgment is EX.DW4/1.
310. Thereafter, the same has never been challenged to other Appellant authority the Court of law therefore the complaint dismissed by the concerned MM is Final and affirmed therefore the allegation of the fraud are vague and manipulated therefore fraud has not been established by the plaintiff.
311. As per the cross examination by defendants no. 1 to 3, the PW-1 has established the defence in favour of defendants which states as under:
A. The PW-1 has admitted the document EX.PW-1/9 i.e. "It is correct that I filed a Suit in the year 2006 against late Smt. Parmeshwari Devi. (Vol. For encroachment of common passage, light and shaft). The suit was decreed as compromised decree in the same year. The certified copy of suit No. 906/06 along with supporting affidavit, site plan and order sheet from 07.03.2006 upto 20.04.2006 have been filed along with one deed of compromise dated 07.04.2006 and the same have been exhibited as Ex.PW-1/59 (Colly) (running in 23 pages) filed by counsel of the LRs of the Defendant No. 1 and the Defendant No. 2 & 3."
312. The statements of the parties were recorded on 07.04.2006 before the Court of Sh. Raj Kumar, Ld. Civil Judge, Delhi. Vide the statement dated 07.04.2006, the PW-1 i.e. Sh. Ravi Prakash Saini categorically stated that the portion, which is under the possession of CS DJ NO.8479/2016 page 120 of 183 the defendants, are given. The portion of the defendant as shown in the site plan in blue colour accompanying Ex. PW/59 (Colly) at page No. 7. (Repeated Verbatim)
313. As per the said Suit filed by the PW-1 i.e. Sh. Ravi Prakash Saini, it is proved in the document EX. PW-1/59 (COLLY) at page no.2 that the Plaintiff is the owner of the half portion of the property No.482, Hardevpuri, Masjid Moth, New Delhi as shown in black colour in the Site Plan attached and the Defendant being the LRs of Late Sh. Hoshiyar Singh are the owners of another half portion of the said property as shown in blue colour in the Site Plan by virtue of the Family Settlement done by Chattar Singh Saini.
314. The Plaintiff relied upon the alleged Will which is EX.PW-1/6. The plaintiff failed to prove EX.PW-1/6 non-produced witnesses on the Will in question. Not only this, but it is admitted fact that a probate case is pending in respect of the Will in question. The same is pending before the concerned District Judge, South Delhi, therefore the will in question is not proved as per the law. The plaintiff cannot take the benefit on the alleged will in question the same is disputed. The issue with regard of the genuineness is to be decided by the Ld. District Judge which is still pending.
EVIDENCE OF DEFENDANT N0.4 THE EVIDENCE FILED BY DEFENDANT NO. 4 :
315. As per the record of the Court, the defendant no.4 appeared as DW2, he appeared on 01.08.2023. There is no cross examination on CS DJ NO.8479/2016 page 121 of 183 relevant point as per the chief recorded on 01.08.2023. As per the cross examination by the plaintiff in which there is affirmative question asked by the plaintiff relevant portion as under:-
"I have Late Chhattar Singh signed before me and plaintiff failed to cross examine the relevant point".(Repeated verbatim in the interest of justice).
316. In regards to the interim order dated 05.03.2013, as per the judicial record during the trial of the case the statement recorded on 05.03.2013 is without prejudice to the rights of the parties subject to outcome of the Suit.
317. As per the entire evidence produced by the plaintiff, the plaintiff failed to produce the evidence, document with regard of the property portion 482 C situated in Khasra no. 217 Gautam Nagar, situated at Hardevpuri village Masjid Mod, Delhi. Therefore, the contention of the plaintiff has been failed disproved the claim of the plaintiff.
318. Presently the ground floor is in possession of the LRs of defendants no.1 to 3 and 3rd floor presently under the possession of Defendant no.4 and remaining portion 1st, 2nd and 4th has been attached by this Court as per previous orders.
319. As averred on behalf of the Ld. Counsel for defendants no. 1 to 3, there is variance between pleadings and proof, and it is not permissible for the Court not to fill up lacuna by speculation.
320. As per the judgement 1982 21 DELHI LAW TIMES 295 CASE CS DJ NO.8479/2016 page 122 of 183 TITLED P.N. BUTT VERSUS KHAUSHALYA DEVI passed by Hon'ble High Court of Delhi at New Delhi, relevant portion of the judgment para 8 and 9 and relevant and same is applicable in present case.
321. The defendants have also relied upon the judgement passed by the HON'BLE SUPREME COURT OF INDIA AIR 1972 2685 JUSTICE K.S. HEDGE, A. N. GROVER AND G.K. MITTER, JJ.
322. During the pendency of the case Application under order 6 rule 17 filed by the plaintiff and the same was allowed 29.01.2019. Hence, as submitted on behalf of the defendants no.1 to 3, the limitation will start w.e.f. 29.01.2019 for filing the Suit for possession therefore the Suit is barred by limitation as per Article of Limitation Act.
323. It is a settled law by the Hon'ble Supreme Court that the plaintiff cannot take the benefit of weakness of the defendant. In this regard and present facts of the case in the case titled RANGAMMA VERSUS KUPPUSWAMY AND ANR., CIVIL APPEAL NO. 562 OF 2003.
324. After the death of Late Shri Chattar Singh, the cause of action does not survive with regard of the dispute in question.
325. As Plaintiff failed to bring best evidence in alleged Will and other documents therefore the adverse presumption goes against the Plaintiff under section 114 Evidence Act. The adverse inference can be drawn against the Plaintiff. (HABEEB KHAN VERSUS VALASULA DEVI, AIR 1997 A.P. 53, 1996 (1) ANDH WR 655).
CS DJ NO.8479/2016 page 123 of 183 WRITTEN ARGUMENTS ON BEHALF OF DEFENDANT NO 4 LALIT SANI (BABU RAM SAINI) RUNNING INTO 13 PAGES:
326. It has been submitted by the Ld. Counsel for defendant no.4 as follows;
THE FUNDAMENTAL QUESTION OF RIGHT TO SUE LACK OF LEGAL STANDING OF THE PRESENT PLAINTIFF
327. The Ld. Counsel for defendant no.4 has stated that the fundamental question arises here in is whether the right to sue legally succeeds in favour of present plaintiff Ravi Prakash Saini after the death of the original plaintiff Chatter Singh Saini or not. Upon understanding the meaning, full reading of words used (Whether plaintiff is entitled to) while framing the issues dated 03-10-2019?
328. The primary legal issue before this Court is whether the right to sue legally survives in favor of the present plaintiff, Ravi Prakash Saini, after the demise of the original plaintiff, Chattar Singh Saini.
329. It is a matter of record that the present plaintiff, Ravi Prakash Saini, was not a party to the original suit filed in 2011 or to the amended suit dated 19.08.2016, which was filed on 20.08.2016 along with an application under Order VI Rule 17 of CPC.
330. The order dated 16.01.2018 establishes that the original plaintiff passed away on 08.07.2017. The present plaintiff, Ravi Prakash Saini, moved an application under Order XXII Rule 3 CPC based on a disputed WILL dated 26.11.2013 (EX-PW 1/2), even though defendants CS DJ NO.8479/2016 page 124 of 183 no. 1 to 3 are the legal heirs of Lt. Chattar Singh Saini (original plaintiff herein).
331. Order XXII Rule 1 CPC states that the death of a plaintiff does not abate the suit if the right to sue survives, but the fundamental question remains whether this right legally passes to the present plaintiff.
332. It has been submitted on behalf of the Ld. Counsel for the defendant no.3 that the substitution of Present Plaintiff is only tentative, not final.
333. The present plaintiff, Ravi Prakash Saini, was tentatively substituted in place of the original plaintiff, Chatter Singh Saini, vide order dated 23.10.2018, based on joint statements of his sisters. The relevant portion of the order states:
"Vakalatnama filed by the Ld. Counsel for plaintiff on behalf of LRs of plaintiff. Ld. Counsel submits that all the four daughters of the plaintiff are present and submitted that they have no objection if their brother, Sh. Ravi Prakash Saini, is impleaded as plaintiff. Joint statement of all the four daughters are recorded. In view of the same, Sh. Ravi Prakash Saini is impleaded as plaintiff. Amended memo of parties be filed."
334. This substitution does not indicate that the defendants had no objection it was the real sisters of the present Plaintiff Ravi Prakash Saini have no objections and it is matter of record that a probate petition is pending since 2018 which clearly suggests that WILL dated 26.11.2013 (EX-PW 1/2) is under dispute in which an objection of the defendant No 4 is also pending.
CS DJ NO.8479/2016 page 125 of 183
335. The order dated 23.10.2018 is tentative and not final. It is a settled principle of law that all orders passed in interlocutory applications are generally considered provisional or tentative.
336. The substitution order will attain finality only upon compliance with Section 68 of the Indian Evidence Act, now replaced by Section 67 of the Bhartiya Sakshya Sanhita, which mandates the attesting witness's testimony to validate the contents of the WILL.
337. In regards to the issue of Prima Facie Satisfaction, it has been submitted that the Ld. Predecessor Court allowed the substitution of the present plaintiff based on the WILL, but this was done on a prima facie basis, without a full adjudication of its validity.
338. It has also been submitted that the substitution did not confer absolute rights upon the present plaintiff but remained contingent on proving the WILL during the proceedings. If he failed to prove the WILL, the order would lose its foundation.
339. In regards to the issue pertaining to legal representatives in procedural law; it has been submitted that in succession disputes, Courts often permit substitution to ensure that proceedings are not stalled. However, such an order does not determine the final title or rights of the substituted person.
340. It has been submitted by the Ld. Counsel for the defendant no.3 that since the present plaintiff failed to prove the WILL, the substitution order dated 23.10.2018 automatically loses its significance and the defendants no. 1 to 3 ,who are also legal heirs of original plaintiff namely Chatter Singh may assert their rightful representation.
341. It has also been submitted that there is a Non-Compliance with CS DJ NO.8479/2016 page 126 of 183 Mandatory Legal Provisions. Section 63(c) of the Indian Succession Act, 1925 requires that a WILL be attested, and Section 68 of the Indian Evidence Act (now Section 67 of Bhartiya Saksha Sanhitha) mandates attesting witnesses testimony for a WILL to be read in evidence.
342. The defendants contend that the present plaintiff failed to prove compliance with these mandatory legal provisions.
343. In regards to the issue pertaining to the pendency of the Probate Petition and its Impact on Present Suit, it has been contended that a probate petition regarding the disputed WILL dated 26.11.2013 (EX- PW 1/2) has been pending since 2018. However, on 26.03.2025, this Court rejected an application by Defendants No. 2 and 3, stating that the pending probate petition has no bearing on the present case.
THE FRAMING OF ISSUES & BURDEN OF PROOF ON PLAINTIFF
344. The issues framed on 03.10.2019 are as follows:
i) Whether the plaintiff is entitled to a decree of declaration as prayed in Clause (i)? (OPP)
ii) Whether the plaintiff is entitled to a decree of possession as prayed in Clause (ii)? (OPP)
iii) Whether the plaintiff is entitled to a decree of permanent injunction as prayed in Clause (iii)? (OPP)
iv) Whether the plaintiff is entitled to a decree of mandatory injunction as prayed in Clause (iv)? (OPP)
345. It has been submitted that the phrase "Whether plaintiff is CS DJ NO.8479/2016 page 127 of 183 entitled to" carries significant legal weight.
The burden of proof rests entirely on the plaintiff and not on the defendants.
BURDEN OF PROOF UNDER SECTION 101 OF THE INDIAN EVIDENCE ACT, 1872
346. As averred, the original plaintiff (Lt. Sh. Chattar Singh Saini) in para 3 contended that he is the owner and in possession of the suit property and Section 101 states that the party asserting a fact must prove it.
347. The present plaintiff must establish that Late Chattar Singh was the owner of the suit property. However, the plaintiff argues that Defendant No. 2, during cross-examination, admitted Chattar Singh's ownership.
348. It is a settled legal principle that courts must follow a holistic approach when evaluating evidence. The Court cannot selectively pick and choose parts of the evidence while passing a judgment.
DEFENDANT'S OBJECTION TO OWNERSHIP
349. Defendants No. 1 to 3 have filed a written statement objecting to Chattar Singh's ownership.
350. The plaintiff has not confronted this objection. In re- examination, the defendant deposed that he is the rightful owner by virtue of a family partition.
PREVIOUS LITIGATION AND COMPROMISE AGREEMENT CS DJ NO.8479/2016 page 128 of 183
351. There is an exhibited document on record showing that in a previous lawsuit between the same parties, a compromise agreement was reached. This compromise acknowledged the suit property as belonging to Defendants No. 1 to 3.
ADVERSE INFERENCE UNDER SECTION 114(G) OF THE INDIAN EVIDENCE ACT.
352. The plaintiff submitted an unregistered document in Urdu as proof of ownership. However, the document was not translated, raising suspicion.
353. As per Section 114(g) of the Indian Evidence Act, if a party withholds relevant evidence, courts can assume that the evidence is unfavourable to them. This principle, known as "adverse inference,"
and applies to the plaintiff.
354. Section 114(g) of the Indian Evidence Act, allows a court to presume that evidence which could be produced but is not, would be unfavourable to the person withholding it, essentially meaning if someone fails to present relevant evidence, the Court can infer that such evidence would be detrimental to their case; this is referred to as drawing an "adverse inference" against the party withholding the evidence.
REQUIREMENT OF REGISTRATION UNDER SECTION 54 OF THE TRANSFER OF PROPERTY ACT
355. Ownership documents must be registered under Section 54 of the Transfer of Property Act. PW-1 admitted that the original plaintiff has CS DJ NO.8479/2016 page 129 of 183 no sale deed.
PLAINTIFF'S CASE FOR DECLARATION AND WILL
356. The plaintiff seeks a declaration of documents of the defendants as null and void , which requires proving the original right to the property.
357. The original plaintiff does not hold a valid title, making the declaration claim untenable. The present plaintiff also claims that the original plaintiff executed a Will for the suit property.
358. However, the original plaintiff had no ownership, making the Will invalid. The Will was never proved by the plaintiff.
359. As submitted further, the WILL Dated 26.11.2013 (EX-PW 1/2) Cannot be Read in Evidence. Since the disputed WILL dated 26.11.2013 (EX-PW 1/2) is the plaintiff's sole basis for claiming rights, it is crucial to note;
i) The plaintiff failed to produce an attesting witness to disputed WILL dated 26.11.2013 (EX-PW 1/2).
ii) The plaintiff failed to include an attesting witness to disputed WILL dated 26.11.2013 (EX-PW 1/2) in the list of witnesses.
iii) PW-1 to PW-7 did not establish compliance with Section 68 of the Indian Evidence Act (now Section 67 of Bhartiya Saksha Sanhitha).
360. Since the WILL itself cannot be read in evidence due to lack of compliance with mandatory legal provisions (S.68 of the Indian CS DJ NO.8479/2016 page 130 of 183 Evidence Act) the plaintiff is not entitled to any relief sought in the suit.
CONCLUSION ON RIGH TO SUE
361. The plaintiff has failed to prove the WILL dated 26.11.2013 (EX-PW 1/2) in accordance with the law. The substitution of the present plaintiff remains tentative, pending compliance with Section 68 of the Indian Evidence Act.
362. As the WILL is inadmissible, the plaintiff has no legal right to sue or claim any relief in the present suit.
RELIEF OF INJUNCTION AND POSSESSION CANNOT BE GRANTED
363. The present suit is barred under the settled principle that when there is a cloud on the title of the plaintiff, the suit is not maintainable without a declaration of ownership. (Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594).
364. The plaintiff has not placed on record any document suggest that he purchased suit property from Hardeva and identification of the property can only be made through site plan but present plaintiff failed to prove the site plan of the suit property and relied on the site plan of the defendants. In para 3 of the amended plaint, the plaintiff claims to be the sole owner in possession of the suit property. If this is the case, the suit seeking possession from the defendant is inherently flawed.
365. The plaintiff has not sought a declaration of ownership despite ownership being disputed by the defendants. Without such a declaration, the relief of injunction cannot be granted as per Anathula CS DJ NO.8479/2016 page 131 of 183 Sudhakar's case.
PRESENT SUIT IS BARRED BY LAW UNDER ORDER 23 RULE 3(A) CPC
366. The present plaintiff Ravi Prakash Saini previously filed a suit against defendants No. 1 to 3, which was compromised based on a family arrangement/partition.
367. As per Order 23 Rule 3(A) of the CPC, a new suit cannot be filed to challenge a compromise that acknowledges a family settlement, binding the plaintiff to refrain from interfering with the suit property. Instead, the plaintiff must approach the same court where the compromise was recorded if there is an alleged violation of its terms.
368. It has also been submitted that the present Suit is Barred u/s 34 of the Specific Relief Act. The dispute revolves around a family settlement/partition where the present plaintiff and Defendants No. 1 to 3 received their respective shares. The plaintiff has filed the suit without seeking cancellation of the family settlement, which is necessary under Section 34 of the Specific Relief Act. A mere challenge to the GPA without challenging the family settlement/partition does not serve the purpose, as the GPA is based on the family settlement. Prayer for demolition is barred by the Principle of Equity as the plaintiff constructed his portion of the property without a sanctioned site plan from the MCD, as admitted in his evidence. Seeking demolition of the defendant's portion while violating the same construction regulations is against the principle that one who seeks equity must do equity. Additionally, all unauthorized constructions have been protected under CS DJ NO.8479/2016 page 132 of 183 National Capital Territory of Delhi Laws (Special Provisions) Second (Amendment) Act, 2023, which extends the safeguard for these constructions until December 31, 2026.
WRITTEN ARGUMENTS ON BEHALF OF DEFENDANT NOS.8 &9 RUNNING INTO 15 PAGES:
369. It has been submitted on behalf of defendants no.8 & 9 as follows.
370. The first litigation with respect to the suit property was filed by the LR of the plaintiff, Sh. Ravi Prakash on 07.03.2006 as Suit No. 906/2006 for Injunction against the defendant Nos.1 to 3. In the plaint of the said suit, which has been exhibited as EX. PW-1/59, Sh. Ravi Prakash had admitted in Para No. 1 thereof that he was the owner of half portion of property bearing Municipal No.482, Hardev Puri, Masjid Moth, New Delhi, and the defendants being the legal heirs of late Sh.
Hoshiyar Singh are the owners of another half portion of the said property by virtue of Family Settlement done by Sh. Chattar Singh during his life time.
371. In Para No.2 of the plaint in Suit No.906/2006, he had admitted that after division of the property, and as per the settlement, he had constructed his half portion and the defendants were reconstructing their half portion. The said suit was compromised between the parties and a compromise application as well as deed of compromise was filed and statement of parties was recorded on 05.04.2006. Both the parties had admitted ownership of each other w.r.t the portions of the suit property.
CS DJ NO.8479/2016 page 133 of 183
372. The original plaintiff, Lt. Sh. Chattar Singh had filed a suit for permanent injunction against the defendants no. 1 to 3 and Sh. Ravi Prakash on 16.08.2007, which was assigned Suit No. 242 of 2007, wherein the Ld. Presiding Officer recorded statement of the parties with respect to compromise. As such, the said suit was also compromised between the parties and statements of the parties were recorded on 14.09.2007.
373. In Suit No. 242 of 2007, Sh. Chattar Singh Saini had specifically pleaded that he was misrepresented to get some stamp papers signed by the defendants no.1 to 3 by playing fraud and that he had got a legal notice dated 12.10.2006 served upon the defendants. In the said suit, the plaintiff had sought a restrain order on the defendants qua transfer or parting with possession of any portion of the suit property to any other person.
374. From 2007 till 2011, there were no differences between the parties and cordial relations existed between them. However, in Sept. 2011, the deceased plaintiff Sh. Chattar Singh Saini filed a complaint case bearing No. 107/1/11 against the defendants nos. 1 to3. The said complaint case was dismissed by the Ld. MM on 24.01.2015 and revision thereof was also dismissed by the Ld. Sessions Court on 30.06.2015. The order passed by the Ld. Sessions Court has been exhibited as EX.DW- 4/A in the present suit. After filing of the complaint case, the deceased plaintiff filed the present suit on 22.10.2011 against the defendant nos. 1 to 3, Sh. Babu Ram Saini (defendant No.4) and MCD (defendant No.5) seeking reliefs of declaration and injunction.
CS DJ NO.8479/2016 page 134 of 183
375. A decree was sought to the effect that the documents namely Power of Attorney, Affidavit, Possession Letter etc. executed by him be declared null, void and non-est as the same had been obtained by fraud. Decree for injunction was also sought against the defendants.
376. All the parties had filed their written statement in the suit. In the written statements, it was specifically pleaded by the parties that the property consisted of a ground floor, first floor, second floor, third floor and barsati floor prior to filing of the suit.
377. This fact of construction upto fourth floor was even stated by the MCD in its written statement. The MCD had stated that four floors were existing and the property had been booked for unauthorized construction. Statement of the parties was recorded on 05.03.2013 by the Ld. Predecessor Court, while granting stay on the alienation of the property.
378. In 2016, the original plaintiff sought an amendment of the plaint to add relief of possession in respect of the suit property. However, before the amendment application could be decided, plaintiff expired on 08.07.2017. On 23.10.2018, Sh. Ravi Prakash was impleaded as LR of Chattar Singh. It is pertinent to take note of the fact that beside Sh. Ravi Prakash, the defendants no.2 & 3 as well as all other legal heirs of deceased defendant No.1 (Smt.Parmeshwari Devi) were also the legal heirs of Sh. Chattar Singh.
379. Status of Sh. Ravi Prakash was/is only of a representative and nothing more than that. The amendment sought by Sh. Chattar Singh was allowed on 29.01.2019 and amended plaint which was filed by deceased Sh. Chattar Singh along with his amendment application was CS DJ NO.8479/2016 page 135 of 183 taken on record.
380. In the amended plaint in Para no. 14, it has been pleaded by the plaintiff that the defendants have no right to be in possession of the suit property with effect from 12.10.2006 i.e. date of the said legal notice. In Para No.29 also, it has been pleaded that the cause of action for filing the present suit arose when the defendants no. 1 to 4 in collusion with each other started raising illegal construction on the suit property and it further arose on 12.10.2006, when the legal notice was issued against the defendants thereby revoking all the documents allegedly executed in favour of the defendants forthwith and they be declared null, void and non-est.
381. It is submitted by the defendants no.8 & 9 that limitation for filing a suit for declaration as per Article 58 & 59 of the Limitation Act is three years when the right to sue first accrues. As such in the present case the right to sue if any even as per the plaintiff accrued to him on 12.10.2006 when notice was sent to the defendants. Any suit seeking cancellation/revocation of the documents executed on 27.01.2006 expired on 12.10.2009. The present suit having been filed on 12.10.2011 is time-barred and is liable to be dismissed.
382. The relief for possession was incorporated in 2019 as an ancillary/consequential- relief to the main/primary relief of declaration. It is submitted that when a primary relief is barred by law and has to be rejected, any ancillary/consequential relief sought also has to be rejected.
383. The Hon'ble Supreme Court in a recent judgment passed on 15.04.2025 in SLP (C) No 13459 of 2024 titled "NIKHILA DIVYANG CS DJ NO.8479/2016 page 136 of 183 MEHTA & ANR. VS HITESH P. SANGHVI & ORS" has held that if a primary relief is time-barred, ancillary reliefs also become unenforceable.
384. It is a fact that the relief of possession claimed by the plaintiff in the present suit is ancillary/consequential relief as evident from the amended plaint and particularly from the prayer clause No.(ii), which starts with the word "consequently pass a decree of possession ........ ".
385. The reliefs of permanent injunctions also have to be rejected being ancillary reliefs to the relief of declaration. It is further submitted that relief of possession was not claimed on the basis of any title /ownership by the plaintiff but as a consequential relief after declaration qua the documents executed on 27/01/2006.
386. Section 3 of the Limitation Act says that even if limitation has not been set up as a defence the Court has to dismiss the suit instituted after expiry of the prescribed limitation period.
387. It is also worthwhile to take note of the fact that elder son of Sh. Chattar Singh namely Sh. Hoshiyar Singh predecessor-ininterest of the defendants no. 1 to 3 had been in possession of the suit property since his birth. This fact stands proved by the averments made by Sh. Ravi Prakash in the suit filed by him in 2006. Even Sh. Chattar Singh Saini had admitted ownership of Sh. Hoshiyar Singh in a No Objection Certificate/Letter addressed by him to the Zonal Engineer, South Zone, MCD, wherein he stated that "the suit property is now to be converted into three equal parts, one part of property owned by Ravi Prakash S/o Chattar Singh, second part to Sh. Hoshiyar Singh S/o Sh. Chattar Singh and third part to Sh. Balbir Singh S/o Narpat Singh, and that all the three CS DJ NO.8479/2016 page 137 of 183 owners now have right to install any connection from any authority."
388. The said No Objection Certificate/Letter, which is signed by Sh. Chattar Singh and thumb mark by Sh. Balbir Singh has been exhibited as EX. DW-1/3 in the present suit. It is submitted that neither Sh. Chattar Singh nor Sh. Ravi Prakash can resile from admissions made by them.
389. It has been submitted further that issues were framed in the suit on 30.10.2019 and onus of all the issues was on the plaintiff. It is submitted that the plaintiff has to stand on his own legs to prove his case. In the present suit, the plaintiff has not been able to discharge the onus placed on him.
390. Civil cases are to be decided on preponderance of probabilities and not on proof beyond doubt. In the present case, the plaintiff has not been able to prove his case by the evidence led by him. Plea of fraud, coercion, misrepresentation has to be specifically pleaded and proved as per law.
391. Defendant No.8 Ms. Rajni Singh and defendant No.9 Lt. Sh. Jagdish Chandra are bonafide purchasers of the second floor and the first floor of the property bearing Municipal No. 482C, Plot of Land measuring 70 sq. yards, out of Khasra No. 52, 53 & 54, situated in the revenue estate of Village Masjid Moth, now residential colony known as Hardev Puri, Gautam Nagar, New Delhi-110049, along with proportionate, undivided, indivisible and impartible ownership rights in the land underneath with common entrance, passage(s), staircase, areas, utilities and amenities provided herein with all rights of ownership, possession, privileges, easements and appurtenances with all fittings, CS DJ NO.8479/2016 page 138 of 183 fixtures, connections, structures standing therein vide Regd. Sale Deed dated 30.12.2016 and 29.10.2015 respectively and had no knowledge of the present litigation and an injunction order dated 05/03/2013. The defendants no.8 & 9 have purchased their respective floors of the property in good faith and have paid valuable consideration.
392. It is submitted that the suit property of the present case is property no. 482C, admeasuring 70 sq. yards, falling in Khasra No. 217, situated at Hardev Puri, Village Masjid Moth, Tehsil Hauz Khas, New Delhi. As such, the property purchased by the defendants no.8 & 9 which falls in a different Khasra cannot be attached and a decree of possession cannot be passed against the defendants no. 8 & 9 and the property owned by them.
393. It is further submitted that the plaintiff has not claimed any relief against the defendants no.8 & 9. The plaintiff has also not claimed any right or ownership in property No. 482C, falling in Khasra No.52, 53 &
54. A decree for possession has to be specific and clear as to the description of the property as set out in the plaint and not beyond that.
394. It is a fact that the plaintiff and the defendants no. 1 to 4 are close relatives. The plaintiff and defendants no. 1 to 4 have played a fraud upon defendants nos. 8 & 9 and the defendants no. 1 to 4 in collusion with the plaintiff have sold the first floor and second floor of the alleged suit property. The plaintiff (Chattar Singh Saini) as well as Ravi Prakash, who was/is residing on the ground floor of the alleged suit property were very well aware that defendants nos. 8 & 9 have purchased the second and first floor of the alleged suit property in the year 2015 & 2016 and even then did not file any application before this CS DJ NO.8479/2016 page 139 of 183 Court.
395. The applications under Order XXXIX Rule 2A have been filed by Ravi Prakash in the year 2024 after a period of more than 9 years of the purchase of second and first floor of the alleged suit property by the defendants nos. 8 & 9 vide Regd. Sale Deeds. The plaintiff and the defendants no. l to 4 have malafide intentions and under the grab of the present litigation want to usurp the property belonging to the defendants nos. 8 & 9.
396. Clause 4 of the Sale deeds provides that the vendor hereby assures the vendee that the said portion of the said property is free from all kinds of encumbrances, such as prior sale, gift, mortgage, disputes, litigation, acquisition, requisition, attachment in the decree of any Court, lien, Court injunction, lease, loan, surety, security, notices, claims, demands, Will, Trust, exchange, prior agreement to sell etc. and if it is ever proved otherwise or if the whole or any portion of the said property is taken away or goes out from the possession of the vendee on account of any legal defect in the ownership and title of the vendor then the vendor will be liable and responsible to make good the loss suffered by the vendee and keep the vendee indemnified.
397. The only right of Sh. Ravi Prakash on being impleaded as legal representative of the deceased original plaintiff is to represent the deceased plaintiff in the present case and to continue and prosecute the same as if the original plaintiff was alive. Sh. Ravi Prakash cannot claim and is not entitled to any relief in his favour arising out of his independent capacity /right.
398. Sh. Ravi Prakash is bound by the pleadings of the deceased CS DJ NO.8479/2016 page 140 of 183 plaintiff in whose place he has been substituted and he can only prosecute and continue the suit filed by the deceased plaintiff in a representative capacity only. The probate petition w.r.t the Will alleged to be executed by Sh. Chattar Singh in favour of Sh. Ravi Prakash, on the basis of which Sh. Ravi Prakash is claiming ownership of the suit property is still pending adjudication and has not yet been finally decided.
399. The above mentioned suit filed by the plaintiff would be deemed to have commenced against the defendants no. 8 & 9 only from 05/08/2024 i.e. the date on which there application under Order 1 Rule 10 CPC read with Section 151 CPC was allowed by this Court. It is submitted that the present suit is false, frivolous, vexatious and misleading.
400. The present suit filed by the original plaintiff is ex-facie barred by limitation against the defendants including defendants no. 8 & 9. The plaint filed by the plaintiff is liable to be rejected as the same does not disclose a valid cause of action, the relief claimed is undervalued and the suit from the statement in the plaint itself is barred by law.
401. There is no proper, legal and valid amended plaint before this Court for the reason that the amendment application along with amended plaint (proposed) was filed in the 2016 and by the time the said application came to be allowed on 29/01/2019 the original plaintiff (Sh. Chattar Singh Saini) had already expired.
402. The present suit for the relief of declaration in respect of documents namely- Power of Attorney, Affidavit, Possession Letter etc. all dated 27/01/2006 is barred by limitation by virtue of Article 58 & 59 CS DJ NO.8479/2016 page 141 of 183 of the Limitation Act, 1963, which provides for a limitation period of three years from the date when the right to sue first accrues or the knowledge of transaction. It is submitted that as per the original plaintiff the cause of action arose on 12/10/2006 when the plaintiff got the legal notice dated 12/10/2006 issued against the defendants thereby revoking all the documents allegedly executed in favour of the defendants forthwith and to declare them null, void and non-est in law and without any force or consequence.
403. It is further submitted that the plaintiff in Para no. 14 of the plaint has stated that immediately after the knowledge of the above said acts on the part of the defendant no. 1 to 4, the plaintiff got the legal notice issued against the defendants thereby revoking all the documents allegedly executed in favour of defendants, forthwith and declare them null, void and non-est in law and without any force or consequence.
404. The plaintiff in the said paragraph has further stated that the defendants now by acting maliciously and without authorization, are in unlawful and wrongful possession of the suit property and the plaintiff is entitled to recover the possession of the suit property from the defendants as the defendants have no right to be in possession of the suit property w.e.f. 12/10/2006 i.e. date of the said legal notice and as such, the defendants are liable to handover the vacant and peaceful physical possession of the suit property to the plaintiff. The present suit ought to have been filed within three years of the date on which the plaintiff had the knowledge of the execution of the alleged documents.
405. Thus the present suit filed by the plaintiff in October 2011 after a period of more than three years from the date of the knowledge of the CS DJ NO.8479/2016 page 142 of 183 execution of the alleged documents i.e. 12/10/2006 is liable to be held as barred by limitation. Reliance is placed upon the judgement passed by the Hon'ble Supreme Court in MD. NOORULHODA V. BIBI RAIFUNISSA AND ORS; (1996) 7SCC 767 AND ABDUL RAHIM V. S.K. ABDUL ZAHAR; (2009) 6 SCC 160 whereby it was held that the provisions of the Limitation Act, 1963 governs a lawsuit for annulment of a transaction, regardless of whether the transaction is null or voidable.
406. In terms of the provisions of Section 31 of the Specific Relief Act, 1963, for adjudication and order for cancellation of an instrument, such instrument should be found to be void or voidable as against the plaintiff. A void agreement is simply an agreement which is unenforceable in law, on the other hand a voidable contract is one which is valid till the time one of the party to the contract chooses to rescind or avoid it. Both these concepts 'to rescind or avoid' are applicable to a 'party to the contract', and not to a third party, meaning thereby that only a contracting party has a locus to set aside a contract by way of cancellation.
407. The LRs of the original plaintiff Sh. Chattar Singh Saini are not party to the Power of Attorney, affidavit, possession letter etc. all dated 27/01/2006 which are sought to be declared as being obtained by fraud and are null, void and non-est in law and consequently to be cancelled. Thus, the LR of the plaintiff namely Sh. Ravi Prakash has no locus to seek declaration & cancellation of Power of Attorney, affidavit, possession letter etc. all dated 27/01/2006 alleged to be obtained by fraud and are null, void and non-est in law including other reliefs which CS DJ NO.8479/2016 page 143 of 183 are ancillary /consequential as prayed for in the present plaint and the suit is liable to be dismissed.
408. The plaintiff has alleged that the defendants no. 1, 2 & 3 have been in possession of the suit property since the year 1999 as evident from para no.4 of the plaint wherein the plaintiff has stated that the plaintiff had two sons namely Shri Ravi Prakash Saini and Shri Hoshiyar Singh Saini. Shri Hoshiyar Singh Saini died in the year 1999 and thereafter in order to accommodate his wife and two sons namely Shri Sanjeev Saini and Shri Ajay Saini, the plaintiff pennitted them to reside in the back portion of the said property.
409. The present suit filed by the original plaintiff does not disclose valid cause of action in favour of the plaintiff. The plaintiff is claiming himself to be the sole owner and in possession of the suit property. However, the plaintiff is neither the owner of the suit property nor in possession thereof. The alleged deed filed by the plaintiff pertaining to the suit property marked as Mark "J", to show his right, title and interest in the suit property does not show name of the plaintiff. It is submitted that in the said deed which is in Urdu language, name of the plaintiff is not mentioned as is evident from the Hindi translation of the said deed, which has been filed by the defendants no. 8 & 9.
410. The plaintiff cannot claim his ownership over the suit property by virtue thereof. The plaintiff is not entitled to any legal character and has no legal right in the suit property and as such the plaintiff is not entitled to claim any relief in respect of the suit property and as such the LR of the plaintiff Sh. Ravi Prakash is not entitled to any relief as prayed for in the present plaint.
CS DJ NO.8479/2016 page 144 of 183
411. The plaint does not disclose any right and cause of action in his favour so as to claim any right /legal character or entitlement in the suit property and as such the plaint is liable to be rejected.
412. It has also been submitted that the plaintiff has not come to this Court with clean hands and has suppressed material facts from this Court. The conduct of the plaintiff has been such as to disentitle him to the assistance of this Court. As averred by the Ld. Counsels for the defendants no. 8 & 9, the plaintiff has concealed from this Court that the suit property belongs to the defendants no. 1, 2 & 3 as is evident from the plaint of Suit bearing No. 906 /2006 titled as "Ravi Prakash V /s Smt. Parmeshwari Devi & Ors" filed by Ravi Prakash (now LR of the original plaintiff) against the defendants no. 1, 2 & 3 wherein in para no. 1 of the plaint (EX.PW-1/59) it is stated that the plaintiff is the owner of half portion of property) bearing Municipal No. 482, Hardev Puri, Masjid Moth, New Delhi, as shown 'Black' colour in the site plan attached and the defendants being the LRs of Hoshiyar Singh are the owners of another half portion of the said property, as shown by 'Blue' colour in the site plan by virtue of family settlement done by Shri Chattar Singh, owner of the entire property, during his life time.
413. Hence, the present suit deserves to be dismissed under Section 41 (i) of the Specific Relief Act, 1963. It is further submitted that Sh. Chattar Singh Saini (original plaintiff) had also submitted a no objection certificate to the Zonal Engineer (W) South Zone Green Park, New Delhi, stating that one part of the property is owned by Sh. Ravi Prakash, second part by Sh. Hoshiyar Singh and third part by Sh. Balbir Singh and that all the three owners now have right to install any CS DJ NO.8479/2016 page 145 of 183 connection from any authority.
414. As such, there is an unequivocal admission by Sh. Chattar Singh (original plaintiff) as well as by Sh. Ravi Prakash (LR of plaintiff). The letter / no objection certificate has been proved as EX.DW-1/3.
415. The reliefs claimed in the present suit have been undervalued and have not been properly valued in accordance with the provisions of Suit Valuation Act, 1887 and the Court Fees Act, 1870. The suit property measuring about 70 Sq. mts. comprises of Ground Floor, First Floor, Second Floor, Third Floor and Fourth Floor. The defendant No. 8 Ms. Rajni Singh had purchased the Second Floor of the suit property for a sale consideration of Rs.25,25,000/- vide registered sale deed dated 30/12/2016 and the defendant No. 9 Sh. Jagdish Chandra has purchased the First Floor of the suit property for a sale consideration of Rs.25,25,000/- vide registered sale deed dated 29/10/2015. However, the plaintiff has valued the present suit for the relief of declaration, permanent & mandatory injunction at Rs. 200/- each and for the relief of possession at Rs.38,54,400/-, which is not the actual market value of the suit property. The present suit being undervalued and not properly valued is liable to be rejected. The plaintiff is further liable to pay ad- valorem court fees on market value of the suit property for all the reliefs claimed by the plaintiff.
416. There is no proper, legal and valid plaint before this Court for the reason that amendment application filed in 2016 was allowed on 29.01.2019 and by that time the original plaintiff had already expired. It is further submitted that the amended plaint ought to have been filed by Sh. Ravi Prakash as legal representative of deceased original plaintiff CS DJ NO.8479/2016 page 146 of 183 because when the amendment application was allowed Sh. Chattar Singh had already expired.
417. The amended plaint available on record bears thumb impression allegedly of Sh. Chattar Singh Saini. The said Thumb impression is denied by the defendants no. 8 & 9. It is submitted that all other documents /pleadings available on record bear signatures of Sh. Chattar Singh Saini. Moreover, thumb impressions of Sh. Chattar Singh Saini have not been proved.
418. The verification of the plaint is not as per the provisions of Order 6 Rule 15 CPC and hence the present suit is liable to be dismissed. The present suit filed by the plaintiff is not maintainable and is liable to be dismissed as the First Floor, Second Floor, Third Floor and Fourth Floor of the suit property have already been sold vide registered sale deeds and unless the said sale deeds are set aside or declared as nonbinding the reliefs claimed in the present suit cannot be granted.
419. In view of the averments made by the defendant No. 5 in its written statement to the effect that the unauthorized construction in the suit property has been booked vide File No.132/UC/B-l/SZ/11 dated 16/11/2022 under section 343/344 of the DMC Act and further action is under contemplation and shall be taken in due course of time, the relief of mandatory injunction as prayed for by the plaintiff has become infructuous, besides being time barred.
420. The plaint does not contain the particulars as per the provisions of Order 7 Rule 1 of CPC. The averments made in the plaint do not indicate any cause of action, legal character or right in favour of the plaintiff to be entitled to the reliefs claimed in the present suit.
CS DJ NO.8479/2016 page 147 of 183 HEAD & PERUSED: OBSERVATIONS & REASONING:
421. The Ld. Counsels representing the parties have advanced their arguments at length, and have made the submissions which have been mentioned herein above.
422. Opportunities were extended to the parties to file their written submissions. The parties have filed their respective written submissions on the record of this Court.
423. The Ld. Counsels for the respective parties have placed reliance on the above stated judgements in support of their case and contentions. The physical copies of the relied upon judgements have been filed on the record of this Court.
424. This Court has perused the facts of the case, and has appreciated the arguments made bu the Ld. Counsels; thus Court deems it fit to go back the basic tenets of the law which state as follows:
Essentials of pleadings A pleading should :
(a) state material facts and not the evidence on which the party seeks to rely on, (b) state such facts in a concise form, and (c) provide all particulars where they are required.
425. These conditions are contained in Order VI Rule 2 of the CPC, and the requirement to state all material facts has time and again been emphasized by the Supreme Court. For instance, in Udhav Singh v CS DJ NO.8479/2016 page 148 of 183 Madhav Rao Scindia AIR 1976 SC 744, wherein it was clarified that all the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are material facts. The failure to disclose material facts can even attract the grave consequence of the suit being dismissed in its entirety, making the observations of the Supreme Court in Virender Nath v. Satpal Singh 2007 (3) SCC 617 pivotal:
"...it is however absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish existence of a cause of action or defence are material facts and must be stated in the pleadings by the party."
426. UDHAV SINGH V. MADHAV RAO SCINDIA AIR 1976 SUPREME COURT 744:
"28. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are "material facts". In the context of a charge of corrupt practice, "material facts"
would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election-petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge leveled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action, are "material facts" which must be pleaded and failure to plead even a single material fact amounts CS DJ NO.8479/2016 page 149 of 183 to disobedience of the mandate of sec. 83(1)(a). "Particulars", on the other hand, are "the details of the case set up by the party". "Material particulars" within the contemplation of clause (b) of s. 83(i) would therefore mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). Particulars serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative.
29. The distinction between material facts and material particulars" was pointed out by this Court in several cases, three of which have been cited at the bar. It is not necessary to refer to all of them. It will be sufficient to close the discussion by extracting what A. N. Ray J. (as he then was) said on this point in Hardwari Lals case (supra):
"It is therefore vital that the corrupt practice charged against the respondent should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action and to give an equal and full opportunity to the respondent to meet the case and to de fend the charges. Merely, alleging that the respondent obtained or procured or attempted to obtain or procure assistance are extracting words from the statute which will have no meaning unless and until facts are stated to show what that assistance is and how the prospect of election is furthered by such assistance. In the present case, it was not even alleged that the assistance obtained or procured was other than the giving of vote. It was said by counsel for the respondent that because the statute did not render the giving of vote a corrupt practice the words "any assistance" were full statement of material fact. The submission is CS DJ NO.8479/2016 page 150 of 183 fallacious for the simple reason that the manner of assistance, the measure of assistance are all various aspects of fact to clothe the petition with a cause of action which will call for an answer. Material facts are facts which if established would give the petitioner the relief asked for. If the respondent had not appeared, could the court have given a verdict in favour of the election petitioner. The answer is in the negative because the allegations in the petition did not disclose any cause of action."
427. This Court seeks to mention the essentials of a Contract/ Agreement enforceable by law:
428. The Indian Contract Act of 1872 governs contracts in India and outlines the basic elements and general rules of a contract. A contract is legally binding only if it meets the following essentials:
Offer and acceptance: One party makes an offer, and the other party accepts it. Acceptance can be express or implied. Consideration: There must be something of value in return, or "quid pro quo". The consideration must be lawful, and not illegal, immoral, or against public policy.
Capacity: The parties must be legally competent to enter into the contract. This means they must be of the age of majority, have a sound mind, and not be disqualified by law.
Intention to create legal relations: The parties must intend for the agreement to be legally binding and create legal obligations. Certainty of meaning: All parties must agree on the same thing in the same sense.
CS DJ NO.8479/2016 page 151 of 183
Lawful object: The contract must have a lawful object.
Possibility of performance: The contract must be possible to
perform.
Legal formalities: The contract can be entered into in writing or
orally
429. This Court is inclined to observe that a power of attorney is considered to be an agreement as per law. Once an agreement becomes enforceable as per law, it takes the shape of a Contract.
430. The arguments made by the plaintiff in respect to the alleged GPA, Affidavit, Possession Letter, Will etc are governed by the principles of The Indian Contract Act. First and foremost, the intention to execute such documents must be established ie the parties being 'ad- idem'.
431. The defence taken on behalf of defendants no.1-4 in respect of Lt. Chattar Singh Saini doesn't not come to the aide of the defendants. It has been stated on behalf of the defendants that the documents (copies thereof) are valid in the eyes of the law, as Lt. Chattar Singh Saini executed the said impugned documents.
432. The original plaintiff Lt. Sh. Chattar Singh Saini filed the present suit, and the criminal complaints against the defendants no.1 to 4 during his lifetime alleging that the impugned documents were never executed by him, or have been obtained by fraud.
433. It is also to be observed that two previous civil suits were filed, and disposed of between the present parties based on Consent/ compromise decrees, where the concerned parties gave their respective statements on oath.
CS DJ NO.8479/2016 page 152 of 183
434. After the passing on the consent decree in the year 2007, the said impugned documents became non-est in the eyes of the law. It is also to be observed that the defendants never placed the originals of the said documents on the record of the Court in order to substantiate their defence.
435. This Court is also inclined to observe that the defendant no.1 gave her statement voluntarily in CS 242/2007. The defendant no.1, and/or her privies were always at liberty to mention the existence and the validity of the impugned documents ie GPA, Possession Letter, Affidavit, Will dated 27.01.2006.
436. It is also observed that admittedly on 12.10.2006, a legal notice was issued by the plaintiff addressed to the defendant no.1 thereby revoking all the documents allegedly executed in favor of the defendant no.1, prior to filing of the first suit by the original plaintiff in the year 2007.
437. If a plaintiff, before filing the suit, makes serious assertions in the Notice to the defendant, then the defendant must not remain silent by ignoring to reply. If he does so, an adverse inference may be raised against him. In METROPOLIS TRAVELS AND RESORTS (I) PVT.
LTD. VS. SUMIT KALRA & ANR. 98 (2002) DLT 573 (DB), The Hon'ble Division Bench of our The High Court of Delhi quoted with approval the authority KALU RAM VS. SITA RAM, 1980 RLR (Note) 44, of our own Hon'ble High Court which is as follows:-
"Observations of Kalu Ram's case (supra) apply on all force to the facts of this case. In the case in hand also despite receipt of notice respondent did not care to reply nor refuted the averments of demand of the amount CS DJ NO.8479/2016 page 153 of 183 on the basis of the invoices / bills in question. But the learned Trial Court failed to draw inference against the respondents."
438. It is also observed that the defendants have challenged the authenticity and the validity of the registered will executed by the original plaintiff in favor of his LR Ravi Prakash Saini, in 2013 which was never impugned by Lt. Sh. Chattar Singh Saini.
439. It is also observed that the same defendants are placing reliance on photo copies of the documents including an unregistered will, allegedly executed by the original plaintiff Lt. Sh. Chattar Singh Saini, which has been impugned by Lt. Sh.Chattar Singh Saini in the present case.
440. During her lifetime, defendant no.1 did not seek the probate of the allegedly executed unregistered will, neither did she seek to prove the contents of the same as per law. The law mandates unregistered wills to be proven/ probated in accordance with the law. It is no more res- integra that un-registered documents do not confer any interest and title. The foundation of the case of the remaining defendants ie Defendant no.4, 6, 7, 8 & 9 is built on the impugned rights and contentions of defendant no.1. If the case of defendant no.1(since deceased), being represented by her sons defendants no.2 & 3 has no legs to stand on, it can be legally ascertained that any subsequent rights/ contentions arising out of the alleged rights of defendant no.1, in favor of other persons, shall also be considered to be null and void in the eyes of the law.
CS DJ NO.8479/2016 page 154 of 183
441. THE INDIAN EVIDENCE ACT, 1872 (BSA 2023AS
AMENDED UPTO DATE).
RELEVANT PROVISIONS:
101. Burden of proof.
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustrations
(a)A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.
(b)A desires a Court to give judgement that he is entitled to certain land in the possession of B, by reason of facts which he asserts and which B denies, to be true. A must prove the existence of those facts.
102. On whom burden of proof lies.
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.
103. Burden of proof as to any particular fact.
The burden of proof as to any particular fact lies on that person who CS DJ NO.8479/2016 page 155 of 183 wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
104. Burden of proving fact to be proved to make evidence admissible.
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
Illustrations
(a)A wishes to prove a dying declaration by B. A must prove B's death.
(b)A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.
106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a)When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b)A is charged with travelling in a railway without a ticket. The burden of proving that he had a ticket is on him.
109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent.
When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or CS DJ NO.8479/2016 page 156 of 183 have ceased to stand, to each other in those relationships respectively, is on the person who affirms it.
110. Burden of proof as to ownership.
When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
111. Proof of good faith in transactions where one party is in relation of active confidence.
Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
442. The issue of Estoppel and Res-judicata has also been pleaded by on behalf of the plaintiff in his arguments.
443. The understanding of the law in regards to S. 115 Estoppel is that when one person has, either in word or by conduct, intentionally caused a person to believe to a thing to be true and to act upon such belief or to alter his position, neither he nor his representative in any suit or proceeding will be allowed to say that the representation was false.
As stated herein above, Estoppel is a principle of law by which a person is held bound by the representation, made by him or arising out of his conduct.
444. Essential conditions for the application of section 115 have been duly explained by The Hon'ble Supreme Court of India in CS DJ NO.8479/2016 page 157 of 183 CHHAGANLAL KESHAVLAL MEHTA (supra):
The following eight conditions must be satisfied to bring a case within the scope of estoppel as defined in section 115;
(i)There must have been a representation by a person to another person, which may be in any form - a declaration or an act or an omission.
(ii)Such representation must have been of the existence of a fact, and not of future promises or intention.
(iii)The representation must have been meant to have been relied upon.
(iv)There must have been belief on the part of the other party in its truth.
(v)There must have been some action on the faith of that declaration, act or omission. In other words, such declaration, etc., must have actually caused the other person to act on the faith of it and to alter his position to his prejudice or detriment.
(vi)The misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice.
(vii)The person claiming the benefit of an estoppel must show that he was not aware of the true state of things. There can be no estoppel if such a person was aware of the true state of affairs or if he had means of such knowledge.
(viii)Only the person to whom the representation was made or for whom it was designed, can avail of the doctrine. The burden of proving estoppel lies on such person.
This Court can safely reach a conclusion that the parties herein are bound by their earlier conduct, and previously made statements, made between the same parties in previous litigations filed in the years 2006 and 2007, respectively.
CS DJ NO.8479/2016 page 158 of 183 DECISION:
445. This Court is seeking to refer to a judgement of The Hon'ble Apex Court of the land which states as follows:
NARAYAN BHAGWANTRAO GOSAVIBALAJIWALE (supra) "11...
In view of all these admissions and the revenue records, it was necessary for the appellant to prove that the admissions were erroneous, and did not bind him. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. ...."
"20. In view of these admissions, the question of burden of proof, as we have already pointed out, is really academic, and if any burden lay upon any party, it was upon the appellant to displace by cogent and convincing evidence that these admissions were erroneous and need not be accepted in proof. "
While disposing of this suit, this Court is inclined to refer to the doctrine of estoppel enshrined in section 115 of The Indian Evidence Act, 1872.
"S. 115. Estoppel.-
When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
CS DJ NO.8479/2016 page 159 of 183 Illustration
A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title."
In order to dispose of the present matter in accordance with the established law, this Court is also seeking to find strength, and place reliance on the below mentioned judgements.
446. UOI V. IBRAHIMUDDIN (supra):
"5. We have considered the rival submissions made by learned counsel for the parties and perused the record. Presumption under Section 114(g) of the Evidence Act : 6. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. (Vide:Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; Hiralal & Ors. v. Badkulal & Ors., AIR 1953 SC 225 ; A. Raghavamma & Anr. v. A. Chenchamma & Anr., AIR 1964 SC 136 ; The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., AIR 1968 SC 1413; M/s. Bharat Heavy Electrical Ltd. v. State of U.P. & Ors., AIR 2003 SC 3024 ; Musauddin Ahmed v. State of Assam, AIR 2010 SC CS DJ NO.8479/2016 page 160 of 183 3813; and Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011) 9 SCC 126 "
"20. Admission is the best piece of substantive evidence that an opposite party can rely upon, though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. Admission may in certain circumstances, operate as an estoppel. The question which is needed to be considered is what weight is to be attached to an admission and for that purpose it is necessary to find out as to whether it is clear, unambiguous and a relevant piece of evidence, and further it is proved in accordance with the provisions of the Evidence Act. It would be appropriate that an opportunity is given to the person under cross- examination to tender his explanation and clear the point on the question of admission."
"21. In Nagubai Ammal & Ors. v. B.Shama Rao & Ors., [AIR 1956 SC 593] , this Court held that admission made by a party is admissible and best evidence, unless it is proved that it had been made under a mistaken belief. While deciding the said case reliance has been placed upon the judgment in Slatterie v. Pooley, (1840) 6 M & W 664, wherein it had been observed What a party himself admits to be true, may reasonably be presumed to be so."
447. My Lord Justice Vikramjit Sen, as he then was, has held in VED PARKASH AND ANOTHER (supra) , as follows:
" 7......Failure to plead facts which constitute a valid defence, must be CS DJ NO.8479/2016 page 161 of 183 read as admissions made as contemplated by Rule VI of Order 12. To hold otherwise would-be an emasculation of judicial powers to dispense complete justice. Justice delayed is justice denied."
This Court is also inclined cite the relevant portion of another judgment of The Hon'ble Supreme Court of India in PENTAKOTA SATYANARAYANA (supra):
"11.
......Burden of proof is distinct from onus of proof. In this regard the decision of Apex Court reported in AIR 2006 SC 1971 in the case "Anil Rishi vs. Gurbaksh Singh" is relevant, wherein at head note B that "There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to show the circumstances, if any, which would disentitle the plaintiff to the same." When the parties adduce evidence, the burden of proof looses its importance, in this regard, the decision of Apex Court reported in AIR 2006 SC 3626 - "Standard Chartered Bank vs. Andhra CS DJ NO.8479/2016 page 162 of 183 Bank Financial Services Ltd." is relevant
448. It is observed that the Ld. Counsel for defendants no. 1-3 has also placed reliance on the judgement of Anil Rishi (supra), which has been referred to by The Hon'ble Supreme Court of India in the judgement of Pentakota.
449. The interpretation of the Ld. Counsel for defendants no. 1 to 3 seems to be misplaced.
450. The object of the judicial process is to find the truth from the pleadings, documents and the evidence led before the Court. IN MARIA MARGARIDA SEQUERIA FERNANDES V ERASMO JACK DE SEQUERIA, (2012) 5 SCC 370, it was observed that the truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice.
"....Therefore truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the courts to become active seekers of truth. It is of seminal importance to inject vitality into our system if we have to regain the lost confidence of the people. Concern for and duty to seek truth should not become the limited concern of the courts. It should become the paramount duty of everyone to assist the court in its quest for truth."
451. It is an admitted fact between the parties that till the year 2006, there were not any such serious disputes between the family members, which were out of the ordinary. In 2006, the present LR of the plaintiff Ravi Prakash Saini filed a suit against Parmeshwari Devi, Sanjeev CS DJ NO.8479/2016 page 163 of 183 Saini, Ajay Saini before the Court of the then Ld. Sr. Civil Judge, Tis Hazari Court bearing no. CS SCJ 906/2006 seeking permanent injunction. It is apposite to mention that the said suit was listed for the first time on 07.03.2006 and was settled by way of a compromise on 07.04.2006 ie within 30 days.
452. The settlement statement reads as follows:
"Suit no. 906/06Statements of Smt. Parmeshwari Devi widow of Late Sh. Hoshiar Singh, Sh. Sanjeev Saini S/o Late Sh. Hoshiar Singh, Sh. Ajay Saini S/o Late Sh. Hoshiar Singh all residents of House no. 482, Hardevpuri, Masjid Moth, New Delhi.
ON S.A. We all the defendants jointly state that we have compromised the present suit with the plaintiff in terms of Ex. C-1 and C-2. The signatures of Smt. Parmeshwari Devi are at point E in Ex. C-1 and in accompanying affidavit at point F & G and on the compromise deed Ex. C-2 at point H, the signatures of Sh. Sanjeev Saini are at point I in Ex.C-1 and at point J on Ex.C-2, the signatures of Sh. Ajay Saini are at point K in Ex.C-1 and at point on Ex.C-2. We have heard the statement of the plaintiff and acknowledge the same to be correct. The present suit may be disposed off as compromised in terms of Ex.C-1 and Ex.C-2.""Suit no. 906/06
Statement of Shri Ravi Prakash Saini S/o Shri Chattar Singh Saini R/o House no. 482, Hardevpuri, Masjid Moth, New Delhi, Age-46 CS DJ NO.8479/2016 page 164 of 183 On S.A. I am the plaintiff in the present suit and I state that I have compromised the present suit with the defendant in terms of the application under order 23 rule 3 accompanied by the compromise deed filed jointly by me alongwith the defendants. The application bears my signatures at point A and the accompanying affidavit at point B and C. The compromise deed bears my signatures at point D, the application under order 23 rule 3 is Ex.C-1 and the compromise deed is Ex.C-2. The present suit may be disposed off as compromised in terms of Ex.C-1 and C-2"
453. In order to shed some light on the issue, the relevant contents of the plaint of the suit CS 906/06 are mentioned herein under:
"1. That the plaintiff is the owner of half portion of property bearing municipal no. 482 , Hardev Puri, Masjid Moth New Delhi, as shown "black" color in the site plan attached and the defendants, being the LRs of late Hoshiar Singh are the owners of another half portion of the said suit property, as shown by 'blue' colour in the site plan by virtue of family settlement, done by Shri Chatter Singh Saini, who is the owner of the entire property, during his lifetime."
454. THE DEED OF COMPROMISE READS AS FOLLOWS:
" THIS deed of compromise is made at Delhi on this 5 th day of April 2006 between the parties to the suit, here in after referred to be as Plaintiff and defendants on the following terms and conditions.
CS DJ NO.8479/2016 page 165 of 183
1. That the defendants have accepted what has been pleaded in the plaint by the plaintiff in the present suit.
.......... "
455. The deed of compromise was duly signed by Ravi Prakash Saini, Smt. Parmeshwari Devi, Sh. Sanjeev Saini, Sh. Ajay Saini and the respective Ld. Counsels for the plaintiff and the defendants, before a Court of law.
456. This Court can safely reach the conclusion that the based on the statements of the parties given by them before The Ld. Court, the parties have admitted in the year 2006 that Lt. Sh. Chattar Singh Saini (father of Ravi Praksh Saini and Father in law of defendant no.1), was the owner of the entire property ie House no. 482, Hardevpuri, Masjid Moth, New Delhi.
457. This Court is also inclined to observe the contents of the compromise deed entered into between the parties. It is an admitted fact that deed of compromise was duly signed by Ravi Prakash Saini, Smt. Parmeshwari Devi, Sh. Sanjeev Saini, Sh. Ajay Saini and the respective Ld. Counsels for the plaintiff and the defendants, before the Ld. Court. It is also a matter of record that the respective statements were given under oath, before the then Ld. Civil Judge, Tis Hazari Court, in the year 2006. The parties are estopped, and cannot be permitted to resile and/or refute the ownership of Lt. Sh. Chattar Singh Saini, who admittedly being the absolute owner, divided the suit property by way of an oral settlement.
458. It is no more res-integra Lt. Sh. Chattar Singh Saini was always the owner of the suit property ie H.no. 482, Hardevpuri, Masjid Mod, CS DJ NO.8479/2016 page 166 of 183 Hauz Khas, New Delhi. Anything to the contrary is deemed to be hit by the principles of Estoppel and Res-judicata.
459. This Court is also inclined to observe that in the year 2007, the original plaintiff (since deceased) filed a suit against the defendants D1 to D3 seeking Injunction. The suit was decided as compromised vide order dated 14.09.2007 IN CS 242/07 TITLED AS SH. CHATTER SINGH VS SMT. PARMESHWARI DEVI WD/O LATE HOSHIYAR SINGH & ORS.
460. The defendants gave the following statement on Oath before the then Ld. Civil Judge, Delhi:
"14.09.07 Suit NO. 242/07 Statement of Smt. Parmeshwari Devi w/o Late. Sh Hoshiar Singh, r/o House no. 482, Hardev Puri Masjid Moth, New Delhi-49 On Oath I, the defendant no.1 herein for myself and on behalf of defendant no.2 and 3 do hereby state that I am ready to keep the plaintiff who is my father in law with me. I will provide all the due facilities to the plaintiff for his well being and I will keep the plaintiff with due care and protection. I will also give the plaintiff the daily expenditure money, necessary for his daily expenditure as per my capacity. I undertake that I will not make any construction or alteration in my residence without permission of the plaintiff. The present suit may kindly be disposed off."
"14.09.07 CS DJ NO.8479/2016 page 167 of 183 Suit NO. 242/07 Statement of Sh. Chattar Singh S/o Late Kanhaiya Lal Saini r/o House no. 482, Hardev Puri Masjid Moth, New Delhi-49 On Oath I the plaintiff herein have read the statements and understood the statements of defendant no.1 which is also read over to me by my counsel. The present suit may kindly be disposed off as compromised in terms of the statements of the defendant no.1 to 4. I have permitted the defendants to make necessary alterations and construction in our residence."
461. This Court is inclined to observe that the dispute, in the suit mentioned herein above, was in regards to the present suit property, which was given by the original plaintiff, during his lifetime. It is also worthwhile to observe that the defendant no.1 (since deceased) gave a statement to the effect that she will take care of the original plaintiff, and shall give him daily expenses. The defendant no.1 also stated on oath that she undertakes not to raise any construction without the permission of the plaintiff.
462. It can be safely ascertained that the defendant no.1(since deceased), and her son's (grandchildren of the original plaintiff) were residing at the suit property as a result of the permission being granted by the original plaintiff/ oral family settlement. No documents, evidence has been led on or behalf of defendant no.1 to prove otherwise.
463. Accordingly, the reliance placed by the Ld. Counsel for defendant no.4 on the judgement of Anathula Sudhakar (supra) seems to CS DJ NO.8479/2016 page 168 of 183 be misplaced. Para 12 of the judgement states as under:
"12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiffs title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a persons title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiffs title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiffs title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration....."
464. DW-1, Sh. Sanjeev Saini, on behalf of defendant no.1, himself and defendant no.3 answered as follows in his cross examination dated 11.11.2022:
"At present I am in possession of all four floors of the backside of the suit property. In the year 1999 my father died. In the year 2005/2006 backside of the said property was transferred in the name of my mother CS DJ NO.8479/2016 page 169 of 183 by my grandfather. It is correct that my grandfather Sh. Chattar Singh was the absolute owner of the whole property no. 482, Hardevpuri, Gautam Nagar, New Delhi. The inherited property mentioned in para no. 2 of my affidavit means the whole four floors in the backside of suit property. These four floors are constructed in 65 sq yds approximately."
465. It has also been observed that the defendant Sh. Sanjeev Saini, deposed on behalf of Defendant no.1 and his brother Sh. Ajay Saini. During his cross examination, the defendant deposed on 17.01.2023 as follows;
"A. The said property does not pertain in any kh. No. because the same was received in donation."
"Q. Do you possess any document with regard to the ownership of this passage?
A. In the year 2006 my grandfather made a Will and a GPA and it is mentioned in these documents.
Both these documents were executed in my presence and I signed the both. I cannot say whether any specification said passage in mentioned the above quoted Will and GPA. The said Will and GPA was signed/ executed in Mehrauli Tehsil in the presence of my grandfather, mother and myself. I do not remember whether someone else signed or not the Will and GPA. We appeared before the registrar at the time of signing the documents which was in a bunch. Same were registered."
466. This Court is inclined to observe the submissions in regards to the NOC given by the original plaintiff. The defendants have stated that CS DJ NO.8479/2016 page 170 of 183 the ownership of Lt. Sh. Hoshiar Singh stands confirmed as the Lt. Sh. Chattar Singh gave an NOC EX.DWI/3 i.e. the letter issued to the Zonal Engineer (West), South Zone, Green Park, Delhi which is the confirmation that the portion was owned and in possession of Late Smt. Parmeshwari Devi and her Legal Heirs, Successors are the owners and in possession of the same.
467. The witness deposing on behalf of defendants no. 1, 2, and 3 ie defendant no.1 2 (son of defendant no.1) and grandson of the original plaintiff has stated on oath that:
"In the year 1999 my father died. In the year 2005/2006 backside of the said property was transferred in the name of my mother by my grandfather. It is correct that my grandfather Sh. Chattar Singh was the absolute owner of the whole property no. 482, Hardevpuri, Gautam Nagar, New Delhi."
468. There are evident contradictions in the statements of the defendants. Upon a perusal of the admitted documents being photocopies, this Court has observed that neither the said documents ie Will and/or the GPA bear any registration number, nor do they bear the signature of Sanjeev Saini, or any other witness.
469. DW-1 also stated under oath as follows:
"Q. How you claim yourself as owner of the suit property? A. The said property bearing No. 482 is obviously to be divided in two sons hence we are the owner of the half portion of the said property."
CS DJ NO.8479/2016 page 171 of 183
470. It is necessary to observe at this stage that the copy of the alleged GPA dated 30.04.2010 Mark 'Q', as relied upon by defendants no.1 to 3 mention the details and signatures of Sanjeev Kumar Saini and Ajay Kumar Saini as witnesses.
471. By way of the said copy of the alleged GPA, it has been stated on behalf of defendants no.1 to 3 that they had sold the fourth floor to one Subhash on 30.04.2010.
472. The testimony of defendant no.2, representing defendant no.1 and 3 does not inspire the faith of this Court.
473. This Court is inclined to observe that defendant no. 4 has examined himself as DW-2 and by way of Evidence Affidavit dated 02.05.2023.
474. In para 6 of his affidavit, it is stated that:
"I further state that during lifetime of Late Shri Chattar Singh, he transferred the documents in favour of Late Smt. Parmeshwari Devi i.e GPA and Will dated 07.02.2006".
475. DW-4 also went on to state in his cross examination dated 01.08.2023 that:
"I am in possession of the 2nd floor and the 3rd floor..."
476. This Court is inclined to observe that as per the certified copy of the registered sale deed executed by Babu Ram Saini (D4) in favour of Smt. Rajni Singh (D8), the second floor of the suit property was CS DJ NO.8479/2016 page 172 of 183 constructed in the year 2014-2015, and was sold to Smt. Rajni Singh (D8) on 30.12.2016 for Rs 25,30,000/-.
477. It is also observed by this Court that D4 has also tendered his unconditional apology on affidavit accepting his in respect of the violation of the order dated 05.03.2013.
478. DW-1 has stated himself to be in possession of all the four floors, whereas he was an attesting witness to the alleged sale of the first floor of the suit property by way of a GPA executed in 2011.
479. DW-2 has submitted on Oath during his cross examination dated 01.08.2023 that he is in possession of the second and the third floor of the suit property, whereas defendant no.4 has admittedly sold the second floor of the suit property to Defendant no.8 vide a registered sale deed dated 30.12.2016.
480. Thereafter, DW-2 tendered an unconditional apology on affidavit accepting his mistake, which was filed through his representative/ son Lalit Saini.
481. As such, the testimonies and the versions of the defence witnesses lack credibility and are disbelieved by this Court.
482. This Court is inclined to observe that the above mentioned documents/ statements/ proceedings are already a part of the judicial file and have been duly exhibited and relied upon by the plaintiff as well as the defendants.
483. It has been held by The Hon'ble Supreme Court of India IN KUSHA DURUKA (supra):
"3. About three decades ago, this Court in Chandra Shashi v. Anil Kumar Verma was faced with a situation where an attempt was made to CS DJ NO.8479/2016 page 173 of 183 deceive the Court and interfere with the administration of justice. The litigant was held to be guilty of contempt of court. It was a case in which husband had filed fabricated document to oppose the prayer of his wife seeking transfer of matrimonial proceedings. Finding him guilty of contempt of court, he was sentenced to two weeks' imprisonment by this Court. This Court observed as under: "1. The stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. 2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice. * 14. * * The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated documents is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, therefore, guilty of contempt." 4. In K.D. Sharma Vs. Steel Authority of India Limited and others it was observed by this CS DJ NO.8479/2016 page 174 of 183 Court: "39. If the primary object as highlighted in Kensington Income Tax Commrs., (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA) is kept in mind, an applicant who does not come with candid facts and "clean breast" cannot hold a writ of the court with "soiled hands".
Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court." [emphasis supplied]
5. In Dalip Singh v. State of Uttar Pradesh and others, this Court noticed the progressive decline in the values of life and the conduct of the new creed of litigants, who are far away from truth. It was observed as under:
"1. For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahinsa" (non- violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice- delivery system which was in vogue in the preIndependence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post- Independence period has seen drastic CS DJ NO.8479/2016 page 175 of 183 changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
8. In a recent matter, this Court again came across a litigant who had tried to overreach the Court by concealing material facts in Saumya Chaurasia v. Directorate of Enforcement. It was a case where the appellant before this Court had challenged the order passed by the High Court6 rejecting his bail application. He was accused of committing various crimes under the Indian Penal Code and the Prevention of Money Laundering Act, 2002. His bail application was rejected by the High Court on 23.06.2023. In the pleadings before this Court, it was mentioned that the High Court had committed gross error in not considering the chargesheet dated 08.06.2023 and the cognizance order dated 16.06.2023, which clearly suggested that there was error apparent on the fact of it. The fact which was available on record was that an CS DJ NO.8479/2016 page 176 of 183 order in the bail application was reserved by the High Court on 17.04.2023 and pronounced on 23.06.2023. Having some suspicion, this Court directed the appellant to file an affidavit to clarify the aforesaid position. There was no specific reply given to the aforesaid query to the Court. Rather vague statements were made. Considering the facts available, this Court observed that there was a bold attempt by and on behalf of the appellant therein to misrepresent the facts for challenging the order impugned therein, regarding the conduct of the parties and the counsel, this Court made the following observations:
"14. It cannot be gainsaid that every party approaching the court seeking justice is expected to make full and correct disclosure of material facts and that every advocate being an officer of the court, though appearing for a particular party, is expected to assist the court fairly in carrying out its function to administer the justice. It hardly needs to be emphasized that a very high standard of professionalism and legal acumen is expected from the advocates particularly designated Senior advocates appearing in the highest court of the country so that their professionalism may be followed and emulated by the advocates practicing in the High Courts and the District Courts. Though it is true that the advocates would settle the pleadings and argue in the courts on instructions given by their clients, however their duty to diligently verify the facts from the record of the case, using their legal acumen for which they are engaged, cannot be obliviated."
(emphasis supplied)
484. The defendant no.1 made a statement on oath using the term CS DJ NO.8479/2016 page 177 of 183 "without permission of the plaintiff". The said statement goes to the root of the matter, and affirms the fact that whatever rights, if any, the defendant no.1 was having, were as a result of the of the same being given to her by the plaintiff, who was the actual owner of the entire suit property.
485. It is apposite to observe and mention that the defendants have unconditionally admitted the fact that the plaintiff was the owner of the entire suit property.
486. It is also observed that the statements were given by the defendant no.1 in two different civil suits, amongst the same parties, in respect to the same suit property.
487. The statement in CS 906/06 was also signed by the present defendants no. 2 and 3 i.e. the children of Lt. Smt. Parmeshwari Devi (defendant no.1).
488. This Court is inclined to refer the words of the Hon'ble Supreme Court of India in BHANU KUMAR JAIN (SUPRA), THROUGH MY LORD JUSTICE S.B. SINHA, AS HE THEN WAS;
"25. There is a distinction between issue estoppel and res judicata [See Thoday vs. Thoday - 1964 (1) All. ER 341]26. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res-judicata creates a different kind of estoppel viz Estopper By Accord. 27. In a case of this nature, however, the doctrine of issue estoppel as also cause of action estoppel may arise. In Thoday (supra) CS DJ NO.8479/2016 page 178 of 183 Lord Diplock held:"......"cause of action estoppel" is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non- existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties."
489. This Court is also inclined to observe that the present suit was filed in the year 2011. During the pendency of the present suit, both the plaintiff and defendant no.1 passed on. The original plaintiff was the father in law of the defendant no.1 and the grandfather of defendants no. 2 & 3. The LR of the plaintiff Ravi Prakash Saini is the real uncle of defendants no.2 & 3. Disputes pertaining to land and property usually arise between the members of the same family, due to extraneous circumstances.
490. The present suit is classic textbook example of family disputes taking a drastic turn.
491. The Ld. Counsels for the parties have performed their duties towards their Clients diligently, and have represented them to the best of their abilities. The efforts of the Ld. Counsels for all the parties concerned are appreciated since the Ld. Counsels have assisted this Court in reaching the below mentioned decision.
492. It would be appropriate for this Court to refer to a metaphor which is used widely in the corridors of The Bench & The Bar, "The winds of justice move slowly, but they move surely."
493. ISSUES FRAMED ON 03.10.2019 ARE ANSWERED CS DJ NO.8479/2016 page 179 of 183 ACCORDINGLY:
1. Whether plaintiff is entitled to decree of declaration as prayed in clause (i)? OPP
494. Issue no.1 is answered in the affirmative, in favor of the plaintiff (since deceased), being represented by his LR Ravi Prakash Saini, and against the defendants.
495. This Court hereby declares the documents namely power of attorney(GPA), affidavit, possession letter, will etc. all dated 27.01.2006 forming the subject matter of the suit, allegedly executed by the original plaintiff, in favour of the late defendant no.1, as being null, void and non-est in law and consequently stand cancelled.
2. Whether plaintiff is entitled to decree of possession as prayed in clause (ii)? OPP
496. Issue no.2 is decided and answered in favor of the plaintiff (since deceased), being represented through his LR Ravi Prakash Saini. Since issue no.(i) stands decided in favor of the plaintiff, accordingly, issue no.(ii) is answered in favor of the plaintiff and against the defendants.
497. The defendants are directed to hand over the actual, peaceful, vacant position of the suit property 482C, rear portion of front portion of Property 482/ 482-C), admeasuring approximately 70 sq. yds., including the common area, situated at Hardev Puri, Village Masjid Moth, Tehsil Hauz Khas, New Delhi, within a period of four (4) weeks from the date of the order.
CS DJ NO.8479/2016 page 180 of 183
498. The first floor, second floor, and fourth floor of the suit property already stand attached by this Court vide its previously passed orders. Keys have been placed on the record of this Court by the Ld. Court Commissioners. After pronouncement of the judgement, this Court shall be deemed to be 'functus-officio'. Accordingly the keys to the first floor, second floor, and fourth of the suit property be released to the plaintiff (being represented through his LR Ravi Prakash Saini) in accordance with law.
3. Whether plaintiff is entitled to decree of permanent injunction as prayed in clause (iii)? OPP
499. In light of issues no. (i) and (ii) being decided as herein above, issue no.(iii) is decided and answered in the affirmative, in favor of the plaintiff and against the defendants. The plaintiff (since deceased) being represented by his LR Ravi Prakash Saini, is entitled to a decree of permanent injunction against the defendants, restraining the defendants, their agents, assignees, attorney holder, etc, from raising any construction on the suit property of alienating, wasting or creating any third party interest in the suit property 482C, rear portion of front portion of Property 482/ 482-C), admeasuring approximately 70 sq. yds., including the common area, situated at Hardev Puri, Village Masjid Moth, Tehsil Hauz Khas, New Delhi.
4. Whether plaintiff is entitled to decree of mandatory injunction as prayed in clause (iv)? OPP
500. After a careful perusal of facts, pleadings, circumstances, and the CS DJ NO.8479/2016 page 181 of 183 submissions made by the Ld. Counsels, on behalf of their parties, this Court deems it fit to answer issue no. (iv) in the negative. MCD, being a statutory body, has already initiated action in accordance with the provisions of The DMC, Act, 1957.
5. Relief.
501. The plaintiff (since deceased), being represented through his LR Ravi Prakash Saini is hereby held entitled to the reliefs which have been decided and answered in the preceding paragraphs.
502. The impugned documents namely power of attorney (GPA), affidavit, possession letter, will etc. all dated 27.01.2006 forming the subject matter of the suit, allegedly executed by the original plaintiff, in favour of the late defendant no.1 are hereby declared to be as null, void and non-est in law and consequently stand cancelled.
503. The defendants are directed to hand over the actual, peaceful, vacant position of the suit property 482C, rear portion of front portion of Property 482/ 482-C) admeasuring approximately 70 sq. yds., including the common area, situated at Hardev Puri, Village Masjid Moth, Tehsil Hauz Khas, New Delhi, within a period of four (4) weeks from the date of the order. Keys of the attached floors be released to the plaintiff (LR) as per law.
504. The plaintiff (since deceased) being represented by his LR Ravi Prakash Saini, is entitled to a decree of permanent injunction against the defendants. The defendants their agents, assignees, attorney holder, etc, are hereby restrained from raising any construction on the suit property CS DJ NO.8479/2016 page 182 of 183 of alienating, wasting or creating any third party interest in the suit property.
505. Suit accordingly stands decreed in favour of plaintiff (since deceased) being represented by his legal heir Ravi Prakash Saini and against the defendants. Ordered Accordingly. Decree Sheet be drawn up.
506. Parties to bear their own Costs.
507. File be consigned to record room.
Copy of Judgement be given Dasti.
Announced in the open Court on 29.05.2025.
Digitally signed by Sunil beniwal (Sunil Beniwal) Sunil Date:
beniwal 2025.05.30 09:12:23 District Judge-06(South), +0530 Saket Courts, New Delhi CS DJ NO.8479/2016 page 183 of 183