Delhi District Court
Sh. Ayodhya Prasad Yadav vs Sh. Ram Ujer Yadav on 28 April, 2023
DLND010016492018
IN THE COURT OF ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
RCA No.19/18
1. Sh. Ayodhya Prasad Yadav
S/o Late Sh. Ram Lal Yadav
2. Smt. Raj Kali
W/o Sh. Ayodhya Prasad Yadav
Both R/o H.No.RZ-19 (New No.1349)
Gali No.5, Main Sagarpur,
New Delhi.
......... Appellants/ Defendants
Versus
1. Sh. Ram Ujer Yadav
S/o Late Sh. Ram Lal Yadav
R/o H.No.RZ-19 (New No.1349)
Gali No.5, Main Sagarpur,
New Delhi.
2. Sh. Shiv Prasad Yadav
S/o Late Sh. Ram Lal Yadav
R/o Village Mukandi Ka Purav
Mauja-Bahra,
District-Raibareilly (U.P.)
........ Respondents/ Plaintiffs
Appeal presented On : 08.03.2018
Arguments Concluded On : 28.04.2023
Judgment Pronounced On : 28.04.2023
RCA No. 19/18 Page no. 1 of 10
Ayodhya Prasad Yadav & Anr. Vs. Ram Ujer Yadav & Anr.
JUDGMENT
1. By way of this judgment, this Court proposes to decide the appeal which has been filed against judgment and decree dated 31.01.2018 of Ld.SCJ/RC (West), Tis Hazari Courts, Delhi in CS no.585/2008 (New No.8265/2016) titled 'Ram Ujer Yadav & Anr. Vs. Ayodhya Prasad Yadav & Anr.'.
FACTUAL MATRIX
2. In brief, the suit was filed by the plaintiffs/ respondents claiming that property bearing no.RZ-19, admeasuring 50 sq. yards, khasra no.14, Gali No.5, Main Sagarpur belonged to Sh. Ram Pal, father of plaintiffs/ respondents and defendant no.1/ appellant no.1; that on 26.11.1996, Sh. Ram Pal executed a Deed of Family Settlement and Partition of the house among his sons as mentioned in the deed; that subsequently, the plaintiffs/ respondents and defendant no.1/ appellant no.1 raised further constructions in their portions and were residing, therein, as shown in the site plan; that it was also agreed that the plaintiffs/ respondents and defendant no.1/ appellant no.1 would not interfere with the right, usage, enjoyment and possession of each other as per the Settlement Deed; that accordingly, both plaintiffs/ respondents and defendant no.1/ appellant no.1 are joint owners of the suit property; that father of the plaintiffs/ respondents and defendant no.1/ appellant no.1 expired in 2003 and the families of plaintiffs/ respondents and defendant no.1/ appellant no.1 have been quarreling with each other; that on 02.05.2008, 04.05.2008, 18.05.2008 & 30.08.2008, the RCA No. 19/18 Page no. 2 of 10 Ayodhya Prasad Yadav & Anr. Vs. Ram Ujer Yadav & Anr. defendants/ appellants have quarreled with the plaintiffs/ respondents and the police was also called; that the plaintiffs/ respondents received information that defendants/ appellants had procured forged & fabricated documents of the suit property in the name of defendant no.2/ appellant no.2 which should be declared null & void and thus, the suit for declaration of ownership of respective portion of suit property and to declare documents procured by defendants/ appellants qua suit property as null & void had been filed along with relief of permanent injunction from unlawful dispossession came to be filed.
3. The Ld. Trial Court vide order dated 12.09.2011, framed the following issues:
(i) Whether the plaintiff is entitled to decree for declaration, as prayed for? OPP
(ii) Whether the plaintiff is entitled to decree for permanent injunction, as prayed for? OPP
(iii) Relief.
4. Vide judgment dated 31.01.2018, Ld.SCJ/RC (West), Delhi, decided issue no.1 in favour of the plaintiffs/ respondents and issue no.2 in favour of plaintiff no.1/ respondent no.1.
GROUNDS OF APPEAL
5. The ground of appeal can be broadly classified as under:
(a) That the Ld. Trial Court failed to appreciate that defendant no.1/ appellant no.1 was the owner of the suit property w.e.f.
11.11.1991 and subsequently, vide registered Sale Deed dated RCA No. 19/18 Page no. 3 of 10 Ayodhya Prasad Yadav & Anr. Vs. Ram Ujer Yadav & Anr. 20.02.2006 had sold the property to defendant no.2/ appellant no.2, by ignoring the testimony of PW-2 Ram Kumar who has admitted that GPA Ex.PW2/D1 and Agreement to Sell Ex.PW2/D2 bore his signatures.
(b) That the Ld. Trial Court failed to appreciate that if by execution of GPA in the year 1990, the suit property had been purchased by defendant no.1/ appellant no.1, there was no question of same being partitioned and family settlement being arrived at.
(c) That the Ld. Trial Court ignored that plaintiff no.1/ respondent no.1 when examined as PW-1 failed to prove the family settlement Ex.PW1/1. It is also a ground urged that PW-3, Smt. Jugna and mother of defendant no.1/ appellant no.1 and plaintiffs/ respondents, also stated that she was not a witness when the family settlement dated 26.11.1996 had been arrived at and the same was in contradiction to the statement of the plaintiff no.1/ respondent no.1 (examined as PW-1) that the settlement had been prepared & executed in her presence.
(d) That the Ld. Trial Court also ignored that no police complaints of the quarrels alleged by the plaintiffs/ respondents had been adduced in evidence.
(e) That the Ld. Trial Court did not take into account the testimony of PW-4 (to the effect that Late Sh. Ram Lal had never disclosed about the portions alloted to which son post partition) and also the statements of defendant witnesses which sufficiently established their case.
(f) That the Ld. Trial Court did not allow application under Order VII Rule 11 The Civil Procedure Code, 1908 (hereinafter referred to as 'CPC') and also dismissed the application for RCA No. 19/18 Page no. 4 of 10 Ayodhya Prasad Yadav & Anr. Vs. Ram Ujer Yadav & Anr. amendment of issues.
REPLY
6. Per contra, by way of the reply, all grounds of appeal have been denied.
ARGUMENTS
7. During the course of arguments, Ld. Counsel for the plaintiffs/ respondents have reiterated the grounds of the appeal. It has been argued by him that application under Order VII Rule 11 CPC on the same date as of judgment & decree has been incorrectly dismissed by ignoring that the document in favour of defendant no.1/ appellant no.1 dated back to 1991. Also, it is therefore, has been urged that application under Order XIV Rule 5 CPC for framing an issue qua limitation was also wrongly dismissed. Thereafter, the Court was has been led through the evidence, to urge that Settlement Deed (Ex.PW1/1) had not been proved. It has been submitted that the Court had wrongly ignored the testimony of PW-2 because PW-2 admitted his signatures on the GPA (Ex.PW2/D1) and Agreement Deed (Ex.PW2/D2) and also conceded that he never filed any complaint about being misled to sign the document. As regards, the mode of transfer by means of documents relied upon by the defendants/ appellants and in specific of how the suit property came to defendant no.1/ appellant no.1 from his father. It has been argued that the transaction was not hit by the judgment of Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana & Anr. in SLP(C) RCA No. 19/18 Page no. 5 of 10 Ayodhya Prasad Yadav & Anr. Vs. Ram Ujer Yadav & Anr. No.13917/2009 dated 11.10.2011 decided by Supreme Court of India.
8. In rebuttal, Ld. counsel for the plaintiffs/ respondents argued that order dismissing applications under Order VII Rule 11 CPC and Order XIV Rule 5 CPC have not been challenged in the appeal. Further, it has also been shown from the impugned judgment that Family Settlement (Ex.PW1/1) was not relied upon by the Ld. Trial Court. Also, it has been submitted that the appeal is not maintainable.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
9. The Court has considered the submissions and perused the material on record.
10. At the outset, it would be pertinent to deal with the argument of the defendants/ appellants that the Ld. Trial Court has not appreciated the bar of limitation and wrongly dismissed application under Order VII Rule 11 CPC and also did not frame any issue qua it. It is pertinent to observe that the Ld. Trial Court vide order dated 31.01.2018 has specifically recorded as under:
"CS. No. 8266/1631.01.2018 At 02:10 PM Present: None for the plaintiffs.
Defendant No. 2 in person.
It is submitted that her counsel is not available. In the interest of justice, be awaited till 04:00 PM for submissions regarding applications U/o 7 Rule 11 CPC and 64 Rule & CPC.
Sd/-
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(Rajinder Singh) SCJ/RC/(West)/Delhi 31.01.2018 At 04:15 PM Present: Ld. Counsel for the plaintiff.
Defendant No. 2 in person.
Ld. Counsel for the defendant is not available to make any submissions regarding the applications Under Order 7 Rule 11 CPC and Order 14 Rule 5 CPC.
I have perused both the applications.
1. In the application Under Order 7 Rule 11 CPC defendants have taken the point of limitation. It is stated that plaintiffs have not disclosed the fact when they came to know about the documents for which declaration has been sought. It is claimed that the suit was filed in the year 2008 Le 17 years after the execution of family settlement (SIC).
2. I have perused the plaint, the plaintiffs have not mentioned any specific date when they came to know about the existence of the documents for which declaration has been sought. I have seen the written statement as well. There is no specific plea about the suit being time barred. In view of this it becomes a matter of evidence as to whether the suit is time barred or not. As such, this question cannot be considered in terms of Order 7 Rule 11 CPC.
3. Accordingly, application Under Order 7 Rule 11 CPC is dismissed.
4. In the application Under Order 14 Rule 5 CPC, defendants have prayed for framing of additional issues regarding the suit being time barred. As already observed above, no specific plea was taken in the written statement regarding the suit being time barred. At the same time, it is true that plea of limitation can be raised at a later stage also. The present suit was filed in the year 2008. Issues were framed on 12.09.2011 so far no such plea was raised. Even, during final arguments no such plea was raised. For framing of issues pleadings are to be considered. In the plaint, there is nothing specific to see that the suit is time barred. The court issued notice of the suit. It is presumed that the court was prima-facie satisfied about suit being within limitation that is why notice was issued. After that stage, it is for the defendants to raise the plea of limitation which they failed to do in their pleadings. The present application is nothing but a delaying actic. More so, because the defendants in their application have not specified when the intiffs came to know about the said documents for which RCA No. 19/18 Page no. 7 of 10 Ayodhya Prasad Yadav & Anr. Vs. Ram Ujer Yadav & Anr.
declaration Where the defendants claim that the suit is time barred they are required to specifically plead the point of time from which the cause of action is to be reckoned.
5. Application of the defendants Under Order 14 Rule 5 CPC is dismissed.
6. Vide separate Judgment pronounced in the open court, the suit of the plaintiff is partly decreed.
7. No order as to cost. Decree sheet be prepared accordingly.
8. File be consigned to record room after due compliance.
Sd/-
(Rajinder Singh) SCJ/RC/(West)/Delhi 31.01.2018"
11. Even though, it is merely stated in the appeal and urged during arguments that the aforementioned applications were dismissed wrongly, it has not been shown how the order dismissing the aforementioned applications does not stand the test of law. The Ld. Trial Court has specifically recorded reasons for dismissal of the applications. It has been observed that the scope of averments under application under Order VII Rule 11 CPC was not in limine. Also, as regards not framing additional issue, it has been observed that there was no plea to that effect raised in the written statement. Hence, the Court does not find any infirmity in the reasoning of the Ld. Trial Court.
12. Even though, it has been urged that the Family Settlement (Ex.PW1/1) was not duly proved, the ground is of no relevance considering that the impugned judgment has held in paragraph no.8.3 that the Family Settlement (Ex.PW1/1) was not duly proved and thus, the Ld. Trial Court has not relied upon the same.
RCA No. 19/18 Page no. 8 of 10 Ayodhya Prasad Yadav & Anr. Vs. Ram Ujer Yadav & Anr.
13. As regards the objection to the impugned judgment for ignoring the evidence led by the defendants/ appellants, it is relevant to observe that in paragraphs no.8.4 to 8.8, detailed reasoning has been given as to why the documents did not affect the suit property. The Ld. Counsel for the defendants/ appellants failed to assist the Court as to how GPA (Ex.PW2/D1) after the death of its executor admittedly in August, 2003 gave authority to deal with the suit property to defendant no.1/ appellant no.1 and to transfer the same to defendant no.2/ appellant no.2. It has not been shown whether the document had any protection under Section 202 of The Contract Act. Further, it has also not been shown when the very premise on which Sale Deed (Ex.DW2/1) was based and was not duly proved, how the document was sustainable. The Ld. Trial Court has rightly observed that neither parties could duly prove the documents relied upon by them affecting their rights in the suit property. Admittedly, the property vested in the father of defendant no.1/ appellant no.1 and the plaintiffs/ respondents and the exclusive right of defendants/ appellants was not established. As such, a declaration followed. Admittedly, it is also not the case of the defendants/ appellants that Sh. Ram Lal Yadav did not die intestate.
14. In the considered view of this Court, no grounds are made out for interference with the order of the Ld. Trial Court. The appeal is therefore, dismissed.
15. Trial Court record be returned back alongwith copy of the judgment.
RCA No. 19/18 Page no. 9 of 10 Ayodhya Prasad Yadav & Anr. Vs. Ram Ujer Yadav & Anr.
16. File be consigned to records.
Pronounced in open Court on 28.04.2023 (Vijeta Singh Rawat) Additional District Judge-01, New Delhi District, Patiala House Courts, New Delhi RCA No. 19/18 Page no. 10 of 10 Ayodhya Prasad Yadav & Anr. Vs. Ram Ujer Yadav & Anr.