Delhi District Court
Sh. Sunder vs Smt. Kamla Devi on 24 October, 2016
IN THE COURT OF MS. NEHA, CIVIL JUDGE09,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Suit No : 86/16
Case ID No. 02401C0287932006
1. Sh. Sunder
2. Sh. Ranbir
Both Sons of Late Sh. Jai Kishan
Both residents of Village & Post Office,
Barwala, Delhi - 110039. .... Plaintiffs.
Versus
1. Smt. Kamla Devi
W/o Sh. Narender Kumar Sharma
2. Smt. Nirmala Devi
W/o Sh. Surinder Kumar Sharma
3. Sh. Sanjay
S/o Late Sh. Jai Kishan
All 1 to 3 residents of :
Village & Post Office, Barwala,
Delhi - 110039. .... Defendants.
SUIT FOR DECLARATION AND PERMANENT INJUNCTION.
Date of Institution : 07.04.2006
Date of reserving Judgment : 20.09.2016
Date of pronouncement : 24.10.2016
Suit No. 86/16 Sunder Vs. Kamla Devi Page 1 of 30
JUDGMENT
1. Vide this Judgment, I shall dispose of the suit of the plaintiffs seeking a decree of declaration and permanent injunction
2. Brief facts as stated in the plaint are as follows :
3. The plaintiffs and defendant no. 3 are real brothers. They being the successors of Sh. Jai Kishan became the owners of a plot in extended Lal Dora, measuring 1 bigha 9 biswas out of khasra no. 87/24 situated in the abadi of Village Barwala, Delhi (hereinafter referred to as 'suit property'). A family settlement was entered into between the plaintiffs and defendant no. 3 in respect of some joint assets of the family on 27.10.2000 and the defendant no. 3 had relinquished his share in the suit property in favour of the plaintiffs in place of other assets. Both the plaintiffs are in absolute possession of the suit property but the same was not mutated in the revenue records.
4. In the month of November 2004, plaintiffs came to know that defendant no. 3 was trying to sell his share, which he had already relinquished in favour of the plaintiffs, to the defendant no. 1 and 2. The plaintiffs came to know, in the month of October 2005, that the defendant no. 1 and 2 in collusion with defendant no. 3 prepared a sale deed and applied for mutation with the revenue authorities. The plaintiffs immediately obtained a copy of khatoni dated 11.05.2005 in order to confirm this fact but no endorsement was made in favour of defendant no. 1 and 2 and the revenue authorities also denied any requests for mutation in process and plaintiffs became satisfied from Suit No. 86/16 Sunder Vs. Kamla Devi Page 2 of 30 the inquiries.
5. On 01.04.2006, defendant no. 1 and 2 with their husbands and 45 musclemen came to the suit property and tried to demarcate and take forcible possession of the suit property. They could not succeed due to intervention of the plaintiffs and other covillagers. The plaintiffs immediately obtained other copy of the revenue record / khatoni on 06.02.2006 wherefrom they came to know that the revenue authorities endorsed the names of defendant no. 1 and 2 in place of defendant no. 3.
6. The plaintiffs are absolute owner and in physical possession of the suit property. The defendant no. 3 had no right to sell the suit property to the defendant no. 1 and 2. The defendant no. 1 and 2 had knowledge that the share of the defendant no. 3 had been delivered / relinquished in favour of the plaintiffs. The plaintiffs are owners of the entire suit property measuring 1 bigha 9 biswas situated in khasra no. 87/24 in the extended Lal Dora and the defendants have no right to interfere and dispossess the plaintiffs from the suit property. Hence, the plaintiffs have filed the present suit seeking following reliefs :
Pass a decree of declaration thereby declaring the sale deed dated 16.12.2004 executed by defendant no. 3 in favour of defendant no. 1 and 2 in respect of the suit property i.e. 1/3rd share registered vide its registration no. 4943, Book No. 1, Volume No. 5844 at pages 54 to 57 registered with SubRegistrar VI, Pitampura, Delhi be null and void. Pass a decree of permanent injunction thereby Suit No. 86/16 Sunder Vs. Kamla Devi Page 3 of 30 restraining the defendants, their agents, associates, representatives, family members, legal heirs, attorneys, assignees etc from interfering in possession of the plaintiffs in respect of the plot measuring 1 bigha 9 biswas situated in khasra no. 87/24 situated in extended Lal Dora of Village Barwala, Delhi.
7. The defendant no. 3 was served through ordinary process as well as through registered post. None appeared for the defendant no. 3 despite service and the defendant no. 3 was proceeded exparte vide order dated 04.07.2006.
8. The defendant no. 1 and 2 have filed joint written statement taking preliminary objections that the suit is bad for misjoinder and non joinder of necessary parties. The Union of India and Gram Sabha are necessary parties as the suit property is governed by Delhi Land Reforms Act. It is stated that this Court has no jurisdiction to try and entertain the present suit. The plaintiffs are seeking partition in the garb of declaration and permanent injunction.
9. It is further stated that the defendant no. 3 had never relinquished his share in the suit property and the defendant no. 3 had sold his share with physical possession to the defendant no. 1 and 2 after execution of sale deed in favour of defendant no. 1 and 2. No family settlement had taken place between the plaintiffs and defendant no. 3.
10. It is further stated that the defendants along with their Suit No. 86/16 Sunder Vs. Kamla Devi Page 4 of 30 husbands and 45 musclemen never came to the suit property and tried to demarcate and take forcible possession of the suit property. The defendant no. 1 and 2 had taken physical possession on the date when the sale deed was executed and mutation was sanctioned in the name of defendant no. 1 and 2. Rest of the allegations made in the written statement are denied.
11. The plaintiffs have filed the replication to the written statement of the defendant no. 1 and 2 wherein they have reiterated the averments made in the plaint and denied the allegations made in the written statement.
12. On completion of pleadings, following issues were framed by the Ld. Predecessor of this Court on 22.12.2006 for consideration :
1. Whether the plaintiff is entitled for declaration as sought ? OPP.
2. Whether the plaintiff is entitled for permanent injunction as sought ? OPP.
3. Whether the suit is bad for non joinder of Union of India and Gaon Sabha as necessary party ? OPD.
4. Whether the plaintiff is seeking partition in the garb of declaration and permanent injunction ? OPD.
5. Whether jurisdiction of the Civil Court is barred ? OPD.
6. Relief.
13. The parties were then called upon to lead their respective Suit No. 86/16 Sunder Vs. Kamla Devi Page 5 of 30 evidence. The plaintiff no. 1 namely Sh. Sunder examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A wherein he has reiterated the averments of the plaint. PW1 relied upon the following documents : i. Site plan as Ex. PW1/1.
ii. Family settlement dated 27.10.2000 as Ex. PW1/2. iii. Copy of Khatoni as Ex. PW1/3.
iv. Copy of Khatoni of 198990 as Ex. PW1/4.
14. The plaintiff no. 2 namely Sh. Ranbir examined himself as PW2 who tendered his evidence by way of affidavit Ex. PW2/A. PW2 relied upon the documents which are already relied upon by the plaintiff no.1 in his testimony.
15. The plaintiffs examined Sh. Sukhbir, one of the witness to the family settlement, as PW3 who tendered his evidence by way of affidavit Ex. PW3/A. The plaintiffs also examined Sh. Ram Dev, one of the witness to the family settlement, as PW4 who tendered his evidence by way of affidavit Ex. PW4/A. The plaintiffs further examined Sh. Ashwani Kumar, Record Clerk as PW5. He produced the summoned record i.e. copy of latest khatoni of the suit property which is Ex. PW5/1 and certified copy of khatoni of the year 1989 1990 as Ex. PW5/2. The plaintiffs have also examined Smt. Rajesh, wife of defendant no. 3 / witness to the family settlement, as PW6 who tendered her evidence by way of affidavit Ex. PW6/A.
16. The plaintiffs did not examine any other witness and plaintiff's evidence was closed vide order dated 19.05.2015.
Suit No. 86/16 Sunder Vs. Kamla Devi Page 6 of 3017. The defendant no. 1 and 2 examined Sh. Surender Kumar /husband of defendant no.2 Nirmala, as DW1 who tendered his evidence by way of affidavit as Ex. DW1/A. He has relied upon the sale deed dated 16.12.2004 as Ex. DW1/1 (OSR).
18. The defendant no. 1 and 2 did not examine any other witness and defendants' evidence was closed vide order dated 02.02.2016.
19. All the witnesses were cross examined by the respective counsels for the opponent. Parties were then called upon to advance their final arguments in the matter.
20. I have heard the arguments on behalf of the parties and have perused the case file. My issuewise findings are as follows :
21. ISSUE NO. 3. : Whether the suit is bad for non joinder of Union of India and Gaon Sabha as necessary party ? OPD.
22. This issue is taken first as it is related to the maintainability of the suit. The onus of proof of this issue has been placed upon the defendants. Ld. Counsel for the defendants has argued that the plaintiffs are seeking declaration of their bhumidhari rights, however, Goan Sabha and Union of India have not been made a party in the suit and therefore, the suit is bad for non joinder of necessary parties.
23. I have considered the contentions of Ld. Counsel for the defendants and have perused the material on record.
24. There is nothing on record to show that the land in question belongs to Goan Sabha. It is stated to be part of extended lal dora of the village and parties have claimed it as their property. There is also Suit No. 86/16 Sunder Vs. Kamla Devi Page 7 of 30 nothing on record to show that the plaintiffs are seeking any relief against Goan Sabha or Union of India.
25. In matters where Delhi Land Reforms Act is applicable, Gaon Sabha is a party when any relief is sought against the Gaon Sabha or the land belongs to Goan Sabha. In such cases, Union of India is also required to be made a party as per Section 161A of the Act. However, in the present case no relief is sought against the Gaon Sabha. The issues involved in the present suit can be completely and effectively adjudicated upon even in the absence of Union of India and Gaon Sabha. In view of discussion hereinabove, this Court holds that the suit is not bad for non joinder of necessary parties. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
26. ISSUE NO. 5. : Whether jurisdiction of the Civil Court is barred ? OPD.
27. The onus to prove this issue has been placed upon the defendants. Ld. counsel for the defendants has argued that the plaintiffs have admitted in the plaint that the land in dispute falls under extended Lal Dora and therefore, the jurisdiction of Civil Court is barred under Section 185 r/w 186 of Delhi Land Reforms Act.
28. On the other hand, Ld. Counsel for the plaintiffs has argued that the plaintiffs are seeking declaration that the sale deed is null and void and declaration in respect of sale deed can not be granted by revenue courts/authorities. It is argued that jurisdiction of Civil Court is not barred in the facts and circumstances of the case.
Suit No. 86/16 Sunder Vs. Kamla Devi Page 8 of 3029. I have considered the submissions and have perused the material on record.
30. Section 185(1) of the Delhi Land Reforms Act reads as under :
185. Cognizance of suits, etc, under this Act (1) Except as provided by or under this Act, no Court other than a Court mentioned in column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof.
31. Section 186 of Delhi Land Reforms Act reads as under :
186. Procedure when question of title is raised - (1) Notwithstanding anything contained in section 185, if in any suit or proceeding mentioned in column 3 of Scheduled I, question is raised regarding the title of any party to the land which is the subject matter of the suit or proceeding and such question is directly and substantially in issue the Court shall, unless the question has already been decided by a competent civil court for the decision of that issue only.
32. In the case in hand, the defendants no.1 and 2 have got their names mutated in the revenue records on the basis of sale deed executed by defendant no.3 in favour of defendant no.1 and 2. In the circumstances of the case, the remedy available to the plaintiffs was to seek declaration in respect of bhoomidhari rights in respect of agricultural land, cancellation of mutation in the name of defendant no.1 and 2 as well as cancellation of sale deed dated 16.12.2004 with consequential relief of permanent injunction. In the entire plaint, plaintiffs have not stated that they have filed any petition before the Revenue Assistant for declaration of their rights in the agricultural Suit No. 86/16 Sunder Vs. Kamla Devi Page 9 of 30 land / suit property. PW1 Sh. Sunder has also stated that they have not filed any appeal before any Competent Revenue Authority against the order of mutation in the name of defendants no.1 and 2.
33. In the matter of Hatti Vs. Sunder Singh, AIR 1971 2 SCR, the Hon'ble Supreme Court of India has held that if a question of title is raised in the application for declaration of bhoomidhari rights, that question will then be referred by the Revenue Assistant to the Civil Courts but a party wanting to raise such a question of title in order to claim bhumidhari rights cannot directly approach the Civil Courts. The Bar of Section 185 read with Section 186 of the Delhi Land Reforms Act will come into picture when the question of title is raised in an application before the Revenue Assistant for declaration of bhumidhari rights.
34. Hon'ble High Court of Delhi in Subhadara vs Surender Singh (2016) 229 DLT 188 had the occasion to decide a matter in which similar questions of law were involved. After discussing the law, Hon'ble High Court has held that The Delhi Land Reforms Act, 1954 applies even to the land situated within lal dora and extended lal dora. The Hon'ble Court has further held that a civil suit seeking declaration to declare a sale deed null and void on the basis of assertion that seller did not have right to execute sale deed is barred under the Delhi Land Reforms Act. Hon'ble High Court has held as under:
"24. The Delhi Land Reforms Act is a complete code in itself. Anyone who is desirous of a declaration of his right Suit No. 86/16 Sunder Vs. Kamla Devi Page 10 of 30 must approach the Revenue Assistant under Item No. 4 of the First Schedule. What the appellant/plaintiff is seeking in the instant case is declaration of her title as an owner and in possession of the suit property, albeit the property which falls in Lal Dora. The respondent/defendants have disputed her possession categorically stated that she has not been in possession of the suit property and that the suit preferred by her is time barred. The reliefs, therefore, claimed by the appellant/plaintiff would not be within the jurisdiction of the Civil Courts.
xxxxx
27.The appellant/plaintiff is seeking a declaration of ownership over a portion of the suit property. The Supreme Court has made it clear in Hatti(Supra) that the jurisdiction of Civil Court is limited only to deciding issues of title which are referred to it by the Revenue Court. This necessarily implies that if a question of title arises, the same will be referred by the Revenue Assistant to the Civil Court. The appellant could not have directly approached the Civil Court for declaration of title.
xxxx
31. The definition of land under section 3(12) of the Delhi Land Reforms Act categorically defines as to what types and what kind lands are to be considered as land for the application of the provisions of Delhi Land Reforms Act. Any Lal Dora plot, whether in the old abadi or extended abadi, is covered under section 3(12) of the Act. Thus the provisions of Delhi Land Reforms Act are applicable to Lal Dora land as well and, in the first instance, the appellant could have approached the revenue courts only. "
35. Therefore, in view of the discussion hereinabove and also in view of aforesaid judgment of Hon'ble High Court of Delhi, this Suit No. 86/16 Sunder Vs. Kamla Devi Page 11 of 30 Court holds that the suit of the plaintiffs for declaration of sale deed as null and void of extended Lal Dora property is barred under the provisions of Delhi Land Reforms Act. This issue is accordingly decided in favour of the defendants and against the plaintiffs.
36. ISSUE NO. 4. : Whether the plaintiff is seeking partition in the garb of declaration and permanent injunction ? OPD.
37. The onus to prove this issue has been placed upon the defendants. Ld. Counsel for the defendants has argued that the plaintiffs are seeking partition in the garb of declaration and injunction and therefore, the suit of the plaintiffs is not maintainable in the present form.
38. Per Contra, Ld. Counsel for the plaintiffs has argued that oral partition has already taken place between the parties after death of father of the plaintiffs and the defendant no.3 and therefore, the present suit for relief of declaration and injunction is maintainable.
39. I have considered the submissions and have perused the material on record.
40. The plaintiffs have filed the present suit for declaration and injunction contending that the suit property was owned by Late Jai Kishan and plaintiffs and defendant no. 3, being real brothers, are the successors of Late Jai Kishan. A family settlement took place between them in respect of few joint assets on 27.10.2000 and the defendant no. 3 had relinquished his share in the suit property in favour of the plaintiffs. The plaintiffs came to know that the defendant no. 3 was trying to sell his share in the suit property which he had already Suit No. 86/16 Sunder Vs. Kamla Devi Page 12 of 30 relinquished in favour of the plaintiffs. In October 2005, plaintiffs came to know from the reliable sources that the defendant no. 1 and 2 in collusion with defendant no. 3 prepared the sale deed and applied for mutation with the revenue authorities.
41. It is alleged in the plaint that on 01.04.2006, the defendant no. 1 and 2 along with their husbands and some musclemen came to the suit property and tried to dispossess the plaintiffs from the suit property. Hence, the suit has been filed seeking declaration that the sale deed dated 16.12.2004 executed by defendant no. 3 in favour of defendant no. 1 and 2 is null and void and further relief of permanent injunction is also prayed that the defendants be restrained not to interfere in the possession of the plaintiffs in the suit property.
42. In the case in hand, the plaintiffs have claimed that by way of family settlement, few joint properties were partitioned. It has also come during cross examination of PW1 and PW2 that after death of their father, the joint properties were partitioned. PW1 Sh. Sunder has specifically stated, "Apart from the land which is the subject matter of the family settlement Ex. PW1/2, there is other joint agricultural land also in the same village. That land was also inherited by three brothers i.e. the two plaintiffs and defendant no. 3". He has further stated that in the agricultural land, all three brothers had one third undivided share each and all three of us were in physical possession of their respective share.
43. PW2 Sh. Ranbir has also stated "Our father had expired in the year 1995. After the demise of our father in the year 1995, we Suit No. 86/16 Sunder Vs. Kamla Devi Page 13 of 30 three brothers i.e. plaintiff no. 1, myself and defendant no. 3 had carried out the partition amongst ourselves and had taken over the possession of our respective portions after carrying out necessary demarcation".
44. It has come in the testimony of plaintiff's witness that the joint properties were partitioned amongst the plaintiffs and the defendant no. 3 after death of their father. In view of discussion hereinabove, this Court holds that there was no need for the plaintiffs to file suit for partition. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
45. ISSUE NO. 2 : Whether the plaintiff is entitled for permanent injunction as sought ? OPP.
46. The onus of proof of this issue has been placed upon the plaintiffs. Ld. Counsel for the plaintiffs has argued that the defendants no.1 and 2 came to the suit property and tried to dispossess the plaintiffs from the suit property forcibly and illegally. The plaintiff's witnesses have also proved that the defendant no. 1 and 2 came to the suit property and tried to take forcible possession and therefore, the plaintiffs are entitled to relief of permanent injunction.
47. Per Contra, Ld. Counsel for defendants no.1 and 2 has argued that no quarrel ever took place as alleged in the plaint and no threat was extended by the defendant no.1 and 2 or their husband and therefore, the plaintiffs are not entitled to relief of permanent injunction.
48. I have considered the submissions and have perused the Suit No. 86/16 Sunder Vs. Kamla Devi Page 14 of 30 material on record.
49. The plaintiffs have alleged that on 01.04.2006, the defendant no. 1 and 2 along with their husbands and some musclemen came to the suit property and tried to demarcate and forcibly take possession over the suit property but they could not succeed due to intervention of the plaintiffs and other covillagers. It is also alleged that the defendants threatened that their names had been mutated in the revenue record and they would come again with force to take possession of the suit property.
50. The plaintiffs have examined themselves as PW1 and PW2 to prove the allegations. During crossexamination, PW2 Sh. Ranbir had stated that there has been no quarrel between the plaintiffs and defendant no. 1 and 2 or their husband at any point of time.
51. The specific statement made by plaintiff no. 2 Sh. Ranbir shows that there never took any quarrel between the plaintiffs and defendant no. 1 and 2 or their husbands as alleged in the plaint. Plaintiffs have not placed any record of PCR call of alleged incident dated 01.04.2006. Plaintiffs have not placed any material to show that any police complaint was lodged after the alleged incident dated 01.04.2006.
52. The plaintiffs are seeking the relief of permanent injunction alleging that the defendants no.1 and 2 threatened to interfere in the possession of the plaintiffs over the suit property. However, it has come on record that no quarrel took place between the defendants no.1 and 2 or their husbands and the plaintiffs. Further, it is on record Suit No. 86/16 Sunder Vs. Kamla Devi Page 15 of 30 that the suit property is an open plot of land. As per law, the possession of open land follows the title. The defendants no.1 and 2 are having a registered document of title in their favour. In these circumstances, this Court is of the opinion that the plaintiffs have failed to bring any material which could prove even prima facie that the defendants had extended any threat to the plaintiffs to take forcible possession of the suit property. Therefore, this Court holds that the plaintiffs are not entitled to relief of permanent injunction. Accordingly, this issue is decided against the plaintiffs and in favour of the defendant no. 1 and 2.
53. ISSUE NO. 1 : Whether the plaintiff is entitled for declaration as sought ? OPP.
54. The onus to prove this issue was placed upon the plaintiffs. The onus to prove this issue was placed on the plaintiffs.
55. Ld. Counsel for the plaintiffs has argued that the defendant no. 1 and 2 have taken stand that the family settlement never took place and however, no evidence has been led by the defendants in this regard. Evidence of Surender, husband of Smt. Nirmala Devi cannot be considered as the defendants no.1 and 2 did not enter the witness box to prove their defence. It is argued that there is no creation of any fresh right in the property by virtue of family settlement and therefore, registration is not mandatory. Ld. Counsel for plaintiffs has also argued that the property is not built up however, in the sale deed, it is mentioned as 'built up' property. Further, the defendant no.3 had no right /title over the suit property after execution of family settlement Suit No. 86/16 Sunder Vs. Kamla Devi Page 16 of 30 deed and therefore, the sale deed executed by defendant no. 3 in favour of defendant no.1 and 2 may be declared as null and void.
56. On the other hand, Ld. Counsel for the defendant no.1 and 2 has argued that there are many contradictions in the statement of the witnesses over the execution of the family settlement deed which creates doubt over execution of the same. Further, the plaintiffs have not taken any action against the sale in the year 2004 after having knowledge of the sale deed. Ld. Counsel has argued that due to typographical mistake in the sale deed, it is mentioned as "built up"
property. However, the plaintiffs are not seeking declaration of the sale deed as null and void on the basis of misdescription but only on the basis of family settlement / relinquishment deed and therefore the plaintiffs are not entitled to relief of declaration.
57. I have considered the contentions raised by Ld. Counsel for the parties and perused the record.
58. In the present case, the plaintiffs are seeking declaration of sale deed executed by defendant no.3 in favour of defendant no.1 and 2 as null and void on the ground that as per family settlement deed dated Ex. PW1/2, the defendant No. 3 had relinquished his rights over the suit property and therefore, defendant No. 3 had no right to transfer any right or title over the suit property in favour of defendant no.1 and 2. The plaintiffs nowhere in the plaint or affidavit have claimed that the sale deed may also be declared null and void as the description of the property is incorrect.
59. This Court agrees with the contention of Ld. Counsel for Suit No. 86/16 Sunder Vs. Kamla Devi Page 17 of 30 defendants no.1 and 2 that the plaintiffs are not seeking cancellation of sale deed on the ground of misdescription of property in the sale deed, but on the ground of family settlement. The plaintiffs have also not claimed that the signatures of defendant no.3 is forged on the sale deed.
60. Ld. Counsel for the defendant no.1 and 2 has also contended that there are many material contradictions in the statement of witnesses over execution of the Family Settlement Deed which creates doubt over the execution of the same.
61. This Court has considered the contentions of Ld. Counsel and have gone through the testimony of plaintiff's witnesses. This Court agrees with the contention of Ld. Counsel for defendants no.1 and 2 that there are many material contradictions in the testimony of plaintiff's witnesses over execution of the family settlement deed between the plaintiffs and defendant no. 3.
62. PW1 / plaintiff No. 1, Sh. Sunder had stated that family settlement deed was got prepared between three brothers on 27.10.2000. It was handwritten at house and thereafter got typed in Tis Hazari Courts. When it was typed in Tis Hazari, only three of them i.e. only three brothers were present. He has further stated that the typed copy of the family settlement deed was signed at Tis Hazari Courts only and it is verbatim of the one which was prepared in handwriting at the residence. He has further stated that the settlement deed was written in the hand of Jagat Singh.
63. PW2 Sh. Ranbir has stated that the settlement was in Suit No. 86/16 Sunder Vs. Kamla Devi Page 18 of 30 writing only and no oral settlement had been arrived at prior to the execution of family settlement in writing.
64. PW3 Sh. Sukhbir, on the one hand, has stated that the family settlement deed, Ex. PW1/2 was written in his presence at the house of plaintiff No. 1, Sh. Sunder. However, PW1 Sh. Sunder has stated that it was got typed at Tis Hazari Courts.
65. Further, PW4 Sh. Ram Dev has stated that the family settlement amongst three sons of Late Jai Kishan had taken place in his presence which was reduced into writing in presence of relatives. The witness has stated that it was written in Hindi and he had also gone through the said settlement before it was signed by respective parties. On the contrary, PW1 Sunder has stated that it was got typed and also signed at Tis Hazari Courts and only three brothers were present at the time of execution of Family Settlement Ex. PW1/2 in Tis Hazari Courts.
66. PW3 Sh. Sukhbir as well as PW4 Sh. Ram Dev have stated that Family Settlement Deed was written at the house. However, PW1 has stated that it was got typed at Tis Hazari. PW6 Smt. Rajesh has stated that she does not know whether the settlement deed was recorded in writing in Hindi or English but it was written in the house itself. She has also stated that Jagat Singh had written the same.
67. The plaintiffs have not placed on record any hand written Family Settlement referred to by PW1 Sh. Sunder in his evidence, neither any Family Settlement in Hindi has been placed which has Suit No. 86/16 Sunder Vs. Kamla Devi Page 19 of 30 been referred to by PW4 during his testimony.
68. PW4 has stated that the said settlement was recorded in respect of all the properties left behind by Late Sh. Jai Kishan. However, PW2 has stated that it was not executed in respect of all the properties left by the father.
69. The contradictions appearing in the testimony of witnesses over the execution of Family Settlement creates serious doubt over the execution of Deed Ex. PW1/2. The testimony of plaintiff's witnesses /PW3, PW4 and PW6 also shows that the Family Settlement Deed Ex.PW1/2 is not the one which was executed between the plaintiffs and the defendant no.3 in their presence.
70. This Court has also carefully perused the terms of family settlement Ex.PW1/2. It is stated in clause 5 of the Family Settlement Deed that the defendant no. 3 had given his one third share in the piece of land to Ranbir and Sunder and in place of his share, he got one Ford Tractor, Trolley and harrow etc.
71. In the crossexamination, PW2 Ranbir has stated that one tractor, trolly, harrow and agricultural equipments attached to the tractor were given to Sanjay in lieu of his 1/3rd share in Khasra No. 87/24. He has also stated that the tractor had no registration number and it was purchased prior to the year 2000 by him in his name. He has also stated that no insurance was got done by him in respect of tractor and he has a receipt in respect of purchase of tractor however, he cannot produce that receipt.
72. It is difficult to believe that a tractor purchased by a person Suit No. 86/16 Sunder Vs. Kamla Devi Page 20 of 30 would not have any registration number. The testimony of PW2 suggests that no tractor was given to the defendant no. 3 as stated in the family settlement deed.
73. Ld. Counsel for defendants has also argued that the family settlement is not a registered document and in the absence of any registration of the family settlement / relinquishment deed, no right could be transferred in the immovable property.
74. On the other hand, Ld. Counsel for the plaintiff has argued that DW1 had admitted the signatures of defendant no. 3 on Family Settlement Deed and thus, document is also admitted by the defendants. Ld. Counsel submits that the execution of the family settlement has gone unrebutted as the defendant no. 3 has not contested the suit and did not challenge the family settlement deed. Defendant no. 1 and 2 cannot challenge the family settlement deed as they were not party to the same. It is also argued that there is no requirement of any stamp paper or registration while recording family settlement deed. Ld. Counsel has also argued that there is no pleading of the defendant no. 1 and 2 in respect of registration of documents, neither any such objection was taken at the time of tendering of evidence by the plaintiffs and therefore, the defendants can not take any objection regarding registration of Family Settlement Deed at the final stage.
75. I have considered the submissions of the parties and perused the record.
76. It is a matter of record that the defendant no.1 and 2 have Suit No. 86/16 Sunder Vs. Kamla Devi Page 21 of 30 not taken any objection in the written statement that the Family Settlement Deed, being unregistered document, is inadmissible in evidence. It is also a matter of record that during examination in chief of PW1 when the family settlement was exhibited, the Ld. Counsel for the defendant no.1 and 2 had not taken any objection regarding admissibility of Family Settlement Deed. Nevertheless, it is settled position of law that legal plea on relevancy and admissibility of document can be taken at any stage of the proceedings. Merely because a party does does not take objection regarding admissibility of a document in the written statement or during evidence, it would not make a document, legally inadmissible, as admissible in evidence.
77. Ld. Counsel for the defendant has relied upon the judgment of Hon'ble High Court of Delhi in the matter of Mohan Lal Bhatnagar Vs. Kamlesh Kumari Bhatnagar & Ors., 185 (2011) DLT 394 (DB). In the said judgment, the Hon'ble High Court has held that where the family settlement partitions immovable property, extinguishing and / or creating rights in immovable property, such settlement reduced into writing, would be inadmissible in evidence if writing is not registered. Hon'ble High Court has discussed the judgment of Hon'ble Supreme Court in the matter of Kale & Ors. Vs. Deputy Director of Consolidation & Ors.. Hon'ble High Court has held as under:
"In the decision reported as AIR 1976 SC 807, Kale & Ors. v. Deputy Director of Consolidation & Ors., the Supreme Court held in no unequivocal words that only such memorandums which are reduced in writing, to record oral Suit No. 86/16 Sunder Vs. Kamla Devi Page 22 of 30 partitions in the past, would be admissible in evidence without such memorandums being registered, for the reason such a writing does not effect any partition i.e. does not create, extinguish or destroy rights in immovable property. But, where a family settlement partitions immovable property, extinguishing and / or creating rights in immovable property, such settlements reduced to writing, would be inadmissible in evidence if the writing was not registered."
78. Ld. Counsel for the plaintiff has also relied upon the judgment of Hon'ble Supreme Court in the matter of Kale & Ors. Vs. Deputy Director of Consolidation & Ors. The Hon'ble Supreme Court has discussed in detail the effect and value of family settlement entered into between the parties. The Hon'ble Court has held as follows : (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no. registration is necessary;
(4) It is wellsettled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of the family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or Suit No. 86/16 Sunder Vs. Kamla Devi Page 23 of 30 extinguish any rights in immovable properties and therefore does not fall within the mischief of s.17 (2) of the Registration Act and is, therefore, not compulsorily registrable;
79. Thus, the law in respect of family settlement is well settled that if a family settlement only records memorandum of family arrangement made in the past, it does not require registration. However, in a case where a family settlement partitions the immovable property or creates / extinguishes any right in the immovable property, it requires registration.
80. In the case in hand, PW2 has admitted during cross examination that the settlement was in writing only and no oral settlement took place prior to execution of family settlement in writing. In view of judgments discussed above, this Court holds that the family settlement, which extinguishes the right of defendant no.3 in immovable property, required registration and in the absence of registration, the Family Settlement Deed Ex. PW1/2 is not admissible in evidence.
81. Now, coming to the contention of the plaintiffs that the defendant no.1 and 2 can not challenge the Family Settlement Deed as they are not party to the same and the signatures being admitted by the DW1, the document is also admitted. Ld. Counsel for the plaintiffs has relied upon the judgment of Hon'ble Supreme Court of India in the matter of "Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and Anr.", civil appeal no. 315 of 1998, decided on 03.11.2003.
Suit No. 86/16 Sunder Vs. Kamla Devi Page 24 of 3082. I have considered the contentions and have gone through the judgment relied upon by the Ld. Counsel for the plaintiffs. The judgment is distinguishable on the facts of the case. In the said judgment, the plaintiff had admitted his signatures on the document, but he did not amend the pleadings to explain the signatures on the document. In the present case, DW1 Surender Kumar has admitted the signatures of defendant no. 3 on the Family Settlement Deed, however the execution of family settlement on 27.10.2000 is categorically denied. Further, the contradictions appearing in the testimony of plaintiff's witnesses had made execution of Family Settlement Deed doubtful.
83. No doubt, the defendant no.3 has not appeared in the Court and has not challenged the execution of Family Settlement Deed. However, this Court is of the view that defendants no.1 and 2, being adversely affected by the Family Settlement Deed Ex. PW1/2, have every right to challenge the same.
84. If this Court considers the argument of Ld. Counsel for the plaintiffs that a third party can not challenge the family settlement, then it would amount to doing injustice to the ones which are bonafide purchasers of the joint property and would also lead to multiplicity of litigation. In such case, where a coowner X sells his share in joint property, the other coowners will file a suit for cancellation of document in favour of the purchaser and in conspiracy with other co owners, X would sign a Family settlement in writing with a back date that he had relinquished his shares and he would deliberately not Suit No. 86/16 Sunder Vs. Kamla Devi Page 25 of 30 appear in the proceedings where family settlement is pleaded and cancellation of documents is sought. Therefore, this Court is of the view that the defendant no.1 and 2, being bonafide purchasers, has every right to challenge the family settlement.
85. Ld. Counsel for plaintiff has further argued that PW6 Smt. Rajesh is an illiterate lady and her evidence may be considered accordingly.
86. Though, there is nothing on record to show that PW6 Smt. Rajesh is an illiterate lady, however even if it is presumed for the sake of arguments that PW6 Smt. Rajesh is an illiterate lady, there is nothing in the evidence of PW6 which is required to be considered in view of her educational qualification. PW6 Smt. Rajesh has stated that family settlement deed on which she signed as a witness was written by Jagat Singh. PW1 Sh. Sunder has also stated that the settlement deed was written in handwriting of Jagat Singh.
87. Admittedly, the family settlement deed written at the house of the plaintiffs has not been placed on record. The testimony of plaintiff's witnesses also shows that the Family Settlement Deed placed on record is not the one which was executed at the house and written by Jagat Singh. The plaintiffs have failed to give any explanation as to in whose custody that family settlement is lying and there is also no explanation as to why the same has not been placed on record. Said Jagat Singh has also not been examined by the plaintiffs to prove the family settlement.
88. It is also noteworthy that the plaintiffs have not disclosed Suit No. 86/16 Sunder Vs. Kamla Devi Page 26 of 30 complete facts before the Court which is apparent from contradictions in their pleadings and their statements in evidence.
89. In the plaint, the plaintiffs have stated that in the month of October 2005, plaintiffs came to know that the defendant no. 1 and 2 in collusion with the defendant no. 3 had prepared the sale deed and applied for mutation.
90. However, in the crossexamination, PW1 has stated that they came to know sometime in the year 2004 that Sanjay had sold his 1/3rd share to the defendant Nos. 1 and 2 by registered sale deed. PW 2 has also stated that when they came to know about the sale in favour of defendant Nos. 1 and 2, immediately they had approached the Revenue Authority in the year 2004 but he does not remember the date and month. It has come during testimony of the plaintiffs that they came to know about the sale deed executed by defendant no. 3 in favour of defendant no. 1 and 2 in the year 2004 itself.
91. In the plaint, the plaintiffs have also stated that in the Khatoni dated 06.02.2006, they came to know that the revenue authorities endorsed the name of defendant no. 1 and 2 in place of defendant no. 3. However, during crossexamination, PW1 has stated that they came to know that the mutation has been recorded in the name of defendant Nos. 1 and 2 against 1/3rd share of Sanjay recently i.e. much after filing of the present suit.
92. It is admitted case that no registered relinquishment deed has ever been executed by Sh. Sanjay in favor of plaintiffs relinquishing his rights in respect of 1/3rd share in the suit land.
Suit No. 86/16 Sunder Vs. Kamla Devi Page 27 of 3093. Section 17 of the Registration Act, 1908 reads as under : "17. Documents of 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) xxx
(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;"
94. Section 49 of the Registration Act provides as under : "49. 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) xxx.
(b) xxx.
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered".
95. In the case in hand, no registered document has been executed by the defendant no. 3 in favour of the plaintiffs thereby relinquishing his share in the suit property. It is also proved, on the balance of probability, that no tractor was given to the defendant no. 3 as stated in the family settlement deed. Further, the family settlement deed, being an unregistered document, can not create or relinquish Suit No. 86/16 Sunder Vs. Kamla Devi Page 28 of 30 any right in the immovable property. The case of the plaintiff is based on the said family settlement deed which is not admissible in evidence.
96. Ld. Counsel for the defendant no. 1 and 2 has argued that the plaintiffs have admitted that they were in exclusive possession of 1/3rd share of the properties and therefore, it can not be said that the possession of suit property (one third) was not handed over by defendant no.3 Sanjay to the defendant no.1 and 2 after execution of sale deed.
97. Ld. Counsel for the plaintiff, on the other hand, has argued that defendant no. 3 had released / relinquished his share through family settlement deed. Defendant no. 3 never came into the physical possession of 1/3rd share of the suit property. Ld. Counsel had also relied upon Section 44 of the Transfer of Property Act and has argued that the buyer cannot take possession of undivided share in the joint property without partition.
98. I have considered the submissions and have perused the record.
99. The plaintiff has relied upon the khatoni, Ex. PW1/4 to show that the undivided share was transferred to the defendant no.1 and 2 and no partition has been recorded in the Khatoni.
100. Even if it is presumed for the sake of arguments that the land was undivided and the plaintiffs as well as the defendant no. 3 had not come into possession of their respective one third share, the issue before the Court is not whether the defendants no.1 and 2 are in Suit No. 86/16 Sunder Vs. Kamla Devi Page 29 of 30 possession of 1/3 share of the land or not, but the issue before the Court is whether the sale deed executed in favour of defendants no. 1 and2 is valid or not. In this case, this Court is not going to decide the issue of possession of defendant no. 1 and 2 over one third share of the suit property.
101. In view of discussion hereinabove, this Court holds that the plaintiffs have failed to prove, on the balance of probability, that the defendant no.3 had relinquished his one third share in the suit property in favour of the plaintiffs vide Family Settlement Deed. Therefore, the plaintiffs are not entitled to relief of declaration that the sale deed executed by defendant no.3 in favour of defendant no.1 and 2 in respect of one third share in null and void. Accordingly, this issue is decided in favour of the defendants and against the plaintiffs.
102. Relief.
103. In view of the findings of this Court on aforesaid issues, this Court holds that the plaintiffs are not entitled to any relief. The suit of the plaintiffs is dismissed. Parties to bear their own costs. Decree Sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Pronounced in the open court
on 24th October, 2016 (Neha)
Civil Judge, Central (09)
Tis Hazari Courts, Delhi
Suit No. 86/16 Sunder Vs. Kamla Devi Page 30 of 30