Delhi District Court
Smt. Shakuntala Devi & Kaushlya Devi vs Delhi Development Authority on 13 May, 2013
IN THE COURT OF AJAY GOEL: ADDITIONAL DISTRICT
JUDGE-14 (CENTRAL):DELHI.
CS-373/09/01
In the matter of:
Smt. Shakuntala Devi & Kaushlya Devi,
W/o Malik Bishamber Nath Malhotra
R/o A-2/1, F.F., Vasant Vihar,
New Delhi-110057. ....... Plaintiff.
VERSUS
1. Delhi Development Authority,
Vikas Sadan, INA, New Delhi.
(Service may be effected through,
the Secretary DDA).
2. Vice Chairman,
Delhi Development Authority,
Vikas Sadan, New Delhi.
3. Union of India,
Ministry of Urban Development
Nirman Bhawan, New Delhi.
(Service may be effected
through its Secretary).
4. Govt. of National Capital Territory of Delhi,
Old Secretariat, Delhi.
(Service may be effected through
its Chief Secretary).
5. Smt. Maheshwari Devi Seth
W/o Late Madan Mohan Seth
R/o A-2/1, G.F., Vasant Vihar, New Delhi.
6. Smt. Uma Shankar Seth,
CS-373/09/01 Page:-1/21
S/o Late Sh. Madan Mohan Seth,
R/o A-2/1, G.F. Vasant Vihar, New Delhi.
7. Sh. Yudhishther Seth,
S/o Late Sh. Madan Mohan Seth,
R/o A-2/1, G.F. Vasant Vihar, New Delhi.
8. Mrs. Meena Anand,
D/o Late Sh. M.M. Seth
G-1/801, Sarojini Nagar,
New Delhi. ...... Defendants.
Date of filing of suit: 05.02.2001
Date of assignment to this court: 21.09.2012
Date of arguments: 13.05.2013
Date of decision: 13.05.2013
JUDGMENT
1. Vide this judgment, I shall dispose off instant suit for mandatory and prohibitory injunction filed by the plaintiff against the defendants. The facts as pleaded in the plaint are that Late Sh. Madan Mohan Seth son of Sh. Bishan Das Seth, was husband of defendant No. 5 Smt. Maheshwari Devi Seth, sister of plaintiff. It was stated that Madan Mohan Seth was member of Govt. Servant Cooperative House Building Society Limited, Vasant Vihar, New Delhi and he had applied for allotment of a plot and being member of said Society, he was allotted a plot of land bearing No. A-2/1, Vasant Vihar, New Delhi, ad measuring 410 sq. yards by the said Society but financially being unable to make the payment in full, he associated himself with the plaintiff, with the understanding that all the benefits, rights, interests in the said plot would vest with the plaintiff to the extent of 50% if the plaintiff CS-373/09/01 Page:-2/21 made half payment to enable the said Sh. Madan Mohan Seth to make the payment to Society/DDA. It was further stated that Madan Mohan Seth in his own handwriting dated 1.8.66 acknowledged that plaintiff paid him Rs. 3950/- through drafts, towards cost of the land and also stated that she would pay all dues at the rate of 50 % which the society would demand in future for said plot and he undertook to pass on half of the plot, if no construction was made, to the plaintiff and accordingly, the plaintiff made payment to the extent of about Rs. 6100/- or so to said Sh. Madan Mohan Seth, at various times, calls of the society by cheque, demand draft and cash, against the sale consideration of half share in the plot. As stated in plaint, the petitioner and Sh. Madan Mohan Seth became entitled to the benefits, interests and legal rights of said plot to the extent of 50% share each. It was further pleaded in plaint that on payment of price of said plot, a perpetual sub-lease deed dated 23.3.1971 was executed between the President of India, through the Under Secretary, Delhi Administration, Vikas Bhawan, New Delhi as lessor and Govt. Servants Cooperative House Building Society Limited as lessee and Sh. Madan Mohan such as sub-lessee. It was also stated that after execution of lease deed, construction was to be raised over the said plot, but since Sh. Madan Mohan Seth was not possessed of sufficient funds, therefore an agreement dated 25.3.72 was executed between Madan Mohan Seth and the plaintiff and it was agreed that Sh. Madan Mohan Seth and plaintiff would be the owners of lease hold rights of said plot in equal shares and construction which would be made over the said plot , would be owned by them in equal shares and Sh. Madan Mohan Seth agreed CS-373/09/01 Page:-3/21 not to alienate, transfer the said plot to anyone else. It was also agreed that both the parties would be raising construction by investing funds in equal shares and in part performance of agreement, Sh. Madan Mohan Seth delivered the possession of undivided 50% share in said plot to the plaintiff. It was averred in plaint that unfortunately Sh. Madan Mohan Seth expired in the year 1972 and after the death of Sh. Madan Mohan Seth, the said plot was mutated in the name of his wife Smt. Maheshwari Devi Seth, defendant No. 5 who is sister of plaintiff. It was also stated that plaintiff and defendant No. 5 agreed that they were joint co- sharers of the leasehold rights in plot A-2/1, Vasant Vihar, New Delhi and defendant No. 5 would built a house on the ground floor and plaintiff on the first floor subject to condition that the defendant No. 5 being the successor in interest of Sh. Madan Mohan Seth, in whose name the said plot was allotted by society, shall not transfer either her leasehold rights in plot or house built by her on the ground floor to any third party, without the written consent of plaintiff. It was stated that defendant No. 5 constructed the ground floor over the said plot and plaintiff constructed the first floor in the year 1974 from her own resources and plaintiff has been in possession of first floor of said house through her tenants since house was constructed till February 1988 and thereafter plaintiff has been in self occupation of the first floor and terrace above first floor of said house till date and ground floor has been in occupation of defendant No. 5 and her family members. It was stated that defendants No. 6 to 8 have no right, title and interest in respect of suit property. As stated in plaint Sh. M. M. Seth expired on 04.7.1972 and after his death, his widow Smt. CS-373/09/01 Page:-4/21 Maheshwari Seth defendant No. 5 represented to the plaintiff that her name was mutated in record of society as well as the DDA in place of late Sh. M.M. Seth and also informed that her children had executed relinquishment deeds in her favour in respect of suit property. It was also stated that Smt. Maheshwari Seth addressed a letter dated 29.3.1973 to the Secretary, Govt. Servants Cooperative House Building Society Ltd. Vasant Vihar, New Delhi informing that her husband died on 04th July, 1972 and her son Sh. Uma Shankar Seth and daughter Km. Meena Seth had executed relinquishment deed duly registered with the Sub-Registrar, New Delhi, relinquishing their rights in the suit property in favour of defendant No. 5 and she requested for mutation of her name in the record of the society. It was also stated that another letter dated 29.3.1973 was written by the Hony. Secretary of Society to Sh. R.C. Sharma, Executive Officer DDA, in which it was stated that M.M. Seth, Sub-lessee of plot No. A-2/1, Vasant Vihar, New Delhi died on 04.7.1972 and according to letter dated 29.3.73 received from Smt. Maheshwari Seth wife of Sh. M.M. Seth, Sh. M.M. Seth had left Smt. Maheshwari Seth, wife, Meena Seth, daughter and Uma Shankar Seth, son and request was made by Smt. Maheshwari Seth for mutation of sub-lease in her favour. As stated DDA vide their letter dated 27.4.73 mutated the name of Smt. Maheshwari Seth in place of her late husband Sh. Madan Mohan Seth in respect of plot No. A-2/1, Vasant Vihar, New Delhi and they informed that necessary change in the record of DDA has been made and society was accordingly advised to make necessary changes in their records also. It was stated in plaint that defendants No. 6 to 8 have no right, title and interest in CS-373/09/01 Page:-5/21 respect of suit property and they have no right to object to mutation of plaintiff's name along with the name of Smt. Maheshwari Seth as co-sub-lessee in respect of plot and DDA and defendants No. 5 to 8 are acting in collusion and in order to cause loss and harm to the plaintiff and defendants No. 6 to 8 have no right in respect of property as they had executed the relinquishment deed in favour of their mother and submitted the same to the Govt. Servants Coop. House Building Society Ltd. with indemnity bond and affidavit etc. and society further submitted the same to DDA and on that basis, the name of Smt. Maheshwari Seth was substituted in the record of the Society and the DDA. It was also stated that defendants No. 5 to 8 are estopped from challenging the mutation in favour of Maheshwari Seth also for the reason that defendants No. 6 to 8 filed the suit for declaration to the effect that the decreed passed in suit No. 18/75 by court of Sh. Brijesh Kumar, Sub-Judge on 30.1.75 in favour of plaintiff against Smt. Maheshwari Seth, their mother was illegal and ineffective and suit was dismissed in default on 1.5.78 and application of defendants No. 6 to 8 for restoration was also dismissed on 06.12.82 by court of Sh. Om Prakash, Sub-Judge 1st Class, Delhi. As stated defendants No. 6 to 8 filed an appeal against the order dismissing their application for restoration and the appeal filed by them was also dismissed vide order dated 13.2.85 by court of Smt. Manju Goel, Ld. Addl. Sr. Sub-Judge. It was also stated that defendant No. 1 and defendants No. 5 to 8 are acting in collusion as is evident from the fact that the plaintiff required the DDA to produce and place on record the mutation file No. F.6(1)/71-DDA- CS and file No. F-1 (320)/78/CS/DDA of A-2/1, Vasant Vihar, New CS-373/09/01 Page:-6/21 Delhi containing all the records and more particularly the declaration filed by Maheshwari Seth for getting the property mutated in her favour in record of DDA after the death of Sh. Madan Mohan Seth and also the relinquishment deed, affidavit and indemnity bond etc. on the basis of which mutation was effected in the name of Smt. Maheshwari Seth. It was also pleaded in plaint that plaintiff is the owner and in possession of first floor with terrace rights together with 50% leasehold rights by virtue of agreement dated 25.3.72 and the court decree dated 30.1.75 which was subsequently registered as document No. 2890 on 26.7.1975. It was also pleaded in plaint that in the year 1974, the defendant threatened to sell the ground floor of said house and the perpetual lease hold rights of said plot which belong to plaintiff and plaintiff was constrained to file a suit for declaration with consequential relief of injunction against defendant No. 5 being suit No. 18/75 and in said suit plaintiff prayed that she may be declared to be the joint holder of leasehold rights in property in question and said suit was compromised later on and statements of parties were recorded. It was also stated that Mrs. Maheshwari Devi Seth in her statement admitted that the facts as stated in plaint were correct and admitted that she was owner of ground floor and plaintiff was the owner of first floor and agreed that without the consent of plaintiff, she would not sell her portion of building and plaintiff should also not be allowed to sell her portion and plaint, written statement, statement of parties and judgment and decree dated 30.1.75 were got registered in the office of Sub- Registrar on 26.7.75. It was also stated that in the year 1976, the other heirs of Sh. Madan Mohan Seth filed a suit for declaration to CS-373/09/01 Page:-7/21 effect that decree passed in suit No. 18/75 was void, bad and was not binding on said persons and in said suit they impleaded plaintiff as defendant No. 1 and Smt. Maheshwari Seth as defendant No. 2. It was stated that suit was filed by Sh. Uma Shankar Seth, Yudhishter Seth and Smt. Meena, legal heirs of Sh. Madan Mohan Seth and Smt. Maheshwari Devi Seth was dismissed in default on 01.5.78 and their application for restoration was also dismissed on 06.12.82 by Ld. Trial Court and an appeal filed by them against order dismissing the application for restoration was also dismissed by Smt. Manju Goel, ADJ, Delhi vide order dated 13.2.85. It was further stated that plaintiff vide her letter dated 9.3.80 requested the DDA that 50% lease hold rights may be transferred in favour of plaintiff in respect of plot in question, the colony of Govt. Servants Coop. House Building Society and it was further requested that in future copies of all demand notices and the ground rent/lease payment may also be sent to plaintiff she being the owner of half property. As stated plaintiff sent several reminders and requested DDA to mutate her name in respect of 50% share in respect of lease hold rights with name of Smt. Maheshwari Devi Seth. It was stated that DDA vide its letter dated 31.12.90 informed the plaintiff that her request for transfer of half share in plot under reference can be acceded to, subject to payment of Rs. 6,65,724/- at the current market rates. It was further submitted that plaintiff vide her letter dated 21.1.1991 informed Vice Chairman DDA that she was prepared to deposit 50% unearned increase at the rates prevailing in the year 1975 when the decree dated 30.1.75 were passed by court of Sh. Brijesh Kumar or 1980 since the plaintiff had made a request for CS-373/09/01 Page:-8/21 transfer in the year 1980 but the DDA has been avoiding to mutate her name as a co-sub-lessee with name of Smt. Maheshwari Seth on one pretext or other and delayed the case inordinately. It was also pleaded in plaint that plaintiff vider her letter dated 22.7.1996 addressed to Vice Chairman, DDA had explained the said facts and requested for conversion of said property from leasehold to free hold on payment of conversion charges and also requested the Lt. Governor Delhi vider her letter dated 17.10.97 for mutation of half share in the plot on the basis of consent decree dated 30.1.75. As stated DDA vide its letter dated 23.1.1998 and 27.7.1998 requested the plaintiff to approach Civil Court to obtain a consent decree for mutation of said plot and in response to said letter, the plaintiff's Son had discussed the matter during public hearing with the Director on several dates as mentioned in plaint and plaintiff vide her letter dated 21.9.98 and 4/6.10.99 again requested the Vice Chairman, DDA for considering her request for mutation of her name as a Co-Sub-Lessee on the basis of said court decree dated 30.1.75 and further requested for conversion of lease hold to freehold on payment of conversion charges at concessional land rates as on 01.4.87 as application under the existing DDA Scheme valid upto 27.12.99 and DDA finally in their letter dated 12.5.2000 required the plaintiff to obtain a fresh consent decree from the court. It was stated that since DDA was not mutating the plaintiff's name in their record as one of the co-lessees, the plaintiff was constrained to send a registered A.D. notice dated 20.7.2000 to Vice Chairman, DDA and Union of India and Govt. of NCT of Delhi under section 73 of The DDA Act and section 80 CPC calling upon the DDA to mutate the CS-373/09/01 Page:-9/21 name of plaintiff in respect of 50 % share in lease hold rights as co-sub-lessee with Smt. Maheshwari Devi Seth within two months of receipt of this notice failing which the plaintiff would be constrained to file a suit against the DDA, Union of India and Govt. of NCT of Delhi and Deputy Director, DDA vide his letter dated 06.11.200 sent a reply to plaintiff's notice and referred to their letter dated 12.5.2000 according to which they required that either Smt. Maheshwari Devi Seth may execute a sale deed in favour of plaintiff after obtaining sale permission from DDA on payment of 50% unearned increase to be determined by lessor or by obtaining a fresh consent decree from court. It was stated that stand taken by DDA is most unreasonable and since plaintiff has already submitted a decree dated 30.1.75, hence fresh consent decree cannot be and need not be obtained. It was also stated that defendant No. 5 is now threatening to dispose off the leasehold rights together with construction built thereon plot in question including the share of plaintiff without her consent and defendant has no right to transfer even the ground floor which belongs to her without the consent of plaintiff. Hence, it was prayed that decree of mandatory injunction may be granted in favour of plaintiff against defendants No. 1 and 2 calling upon the DDA to mutate the name of plaintiff as co-sub-lessee in respect of plot in question alongwith name of Smt. Maheshwari Devi Seth wife of Late Sh. Madan Mohan Seth on the basis of agreement dated 25.3.72 and decree dated 30.1.75 on charging 50% unearned increase at the rates prevailing in 1975 or 1980. It was further prayed that prohibitory injunction may be issued against the defendants No. 1 and 2 restraining the DDA from mutating or CS-373/09/01 Page:-10/21 recording the name of any other person as co-sub-lessee or recording the transfer of the 50% leasehold rights of plot in question belonging to plaintiff in favour of any other person except the plaintiff.
2. In reply to plaint, defendants No. 1 and 2 filed the written statement wherein preliminary objections were raised stating that. On merits, it was stated that plaintiff has no locus standi to file the present suit. It was also stated that suit is barred by limitation and therefore liable to be dismissed. It was further stated that suit has not been properly valued nor proper court fees has been paid. On merits, it was stated that suit of the plaintiff is based on forged agreement dated 25.3.72 and the said agreement has been originally apparently executed by and between Madan Mohan Seth and Sh. Bishamber Nath who have not only signed the said agreement but in whose name the stamp papers have also been purchased. However the name and signatories of the plaintiff has been interpolated in document subsequently. It was also stated that DDA was not a party to the suit No. 18/75 so any decree or order passed in the said suit cannot bind the replying defendants. It was also stated that officials of replying defendant many a time requested the plaintiff that before giving the gift or sale permission the required documents and other formality as specified under the policy are required which were called but the same were not submitted by the plaintiff. The other contents of plaint were denied and it was prayed that suit of the plaintiff be dismissed with costs.
3. Defendants No. 5 to 8 also filed their joint written statement in reply to plaint wherein it was stated that no permission has been CS-373/09/01 Page:-11/21 obtained from the authorities concerned to transfer 50% of the plot or 50% ownership rights to anybody. It was also stated that this agreement is an unregistered document and an unregistered agreement cannot pass any title in land of value more than Rs. 100/- to anybody and this agreement is therefore void in law and cannot be given effect to and was never given effect to. It was also stated that mere possession of plaintiff would not in any manner transfer the ownership of plot to the plaintiff. It was also stated that defendant No. 5 was merely a nominee and for that limited purpose the plot was mutated in her name in the records of said society, however the mutation does not confer any ownership rights in the property. It was also stated that any mutation done by DDA in favour of Smt. Maheshwari Seth does not take away the rights of other legal heirs of Sh. Madan Mohan Seth. It was further stated in written statement that in terms of lease deed, no transfer could be made of any portion of property except with the written permission of lessor i.e. DDA/President of India and no such permission has been obtained. The other contents of plaint were denied and it was prayed that suit of the plaintiff be dismissed with costs.
4. During proceedings, in view of orders passed by the Hon'ble Chief Justice of Hon'ble High Court of Delhi, the present matter was transferred to the court of Hon'ble District Judge, Tis Hazari Courts, Delhi vide order dated 21.10.2003 with direction to assign the the present case to a court of competent jurisdiction.
5. Replications were filed by plaintiff to the written statement of respective defendants wherein contents of plaint were reiterated and those of written statement were denied.
CS-373/09/01 Page:-12/21
6. During proceedings, none appeared on behalf of defendant No. 3 and 4 nor any written statement was filed by them hence their right to file the written statement was closed vide order dated 22.05.2001.
7. Thereafter application U/o 6 Rule 17 CPC was filed for amendment in plaint which was allowed and amended plaint was filed on record and defendants were directed to file amended written statement. Defendants No. 1 and 2 failed to file amended written statement despite grant of last and final opportunity, hence right of defendants No. 1 and 2 to file amended written statement was closed vide order dated 16.7.2003.
8. On the pleadings of the parties, the following issues were framed vide order dated 03.12.2004:-
1) Whether suit of the plaintiff is barred by limitation?OPD1.
2) Whether compromise judgment and decree dated 30.1.75 passed by Ld. Sub-Judge in Suit No. 18/75 is null and void and against statutory provisions of terms and conditions of allotment? OPD1 & D2.
3) Whether suit has not been valued properly for the purpose of court fees?OPD1 & D2.
4) Whether after death of Madan Mohan, the property was mutated in the exclusive name of defendant No. 5 on basis of wrong declaration made by her?OPD1 & D2.
5) Whether the agreement entered into between Sh. Madan Mohan Seth was illegal and against public policy and was unregistered and cannot be given effect to?OPD 3 to D8.
6) Whether plaintiff constructed first floor from her own resources?
OPP CS-373/09/01 Page:-13/21
7) Whether plaintiff is a licencee in the property with no rights? OPD 5 to D8.
8) Whether plaintiff is entitled to decree of mandatory injunction as prayed for?
9) Whether plaintiff is entitled to prohibitory injunction as prayed for?
10) Relief.
9. Plaintiff in support of her case examined several witnesses i.e. PW-1 Sh. Vinod Kumar Malhotra, PW-2 Sh. Raj Kumar, LDC, Record Room Civil, PW-3 Sh. Prakash Chander Khanna, PW-4 Sh. P. C. Sharma, PW-5 Sh. Bishamber Nath Malik, PW-6 Sh. Jagdish Chander Khanna, PW-7 Sh. Satya Pal, from Delhi Archives Department, PW-8 Sh. Ishwar Chand Sharma, UDC from Office of Assessment and Collector, MCD, PW-9 Sh. Anoop Kumar Vatsa, LDC from Food & Supply Office, PW-10 Sh. Jwala Prasad, PW-11 Sh. Paramjeet Singh, PW-12 Sh. Sunil Kumar, PW-13 Sh. Surender Jamwal, PW-14 Sh. Jai Mohan Aggarwal,
10.In defence, defendants examined DW1/D1 Sh. V. K. Chopra, Assistant Director Cooperative Societies Branch, DDA, D5W1 Sh. Yudhister Seth and D5W2 Ms. Maheshwari Devi Seth
11.I have heard Ld. Counsels for both the parties as well as perused the record. My issue-wise findings are as under:-
12.Issue No. 1. Whether suit of the plaintiff is barred by limitation?OPD1:- Under this issue, the defendant was required to prove that suit is hit by limitation. I have perused the plaint. The cause of action has been shown to have arisen firstly on 30.1.75 and thereafter, on further communications with DDA on respective dates. The suit has been filed on 05.2.2001 with the CS-373/09/01 Page:-14/21 prayer that defendant No. 1 and 2 be directed to mutate the name of plaintiff as sub-lessee for which he has put claim. The plaintiff has relied upon communication with DDA and specially Ex. PW-1/85 letter dated 12.5.2000 and other communications in the form of Ex. PW-1/55 to 1/59, Ex. PW-1/67 and 1/68. The plaintiff has further relied upon Ex. PW-1/86 and 1/87. Ex. PW-1/85 shows that DDA has asked Smt. Shakuntala Devi to get the fresh consent decree from court or execution of some sale deed in favour of plaintiff to the extent of 50% on the application made on 06.10.1999. The application dated 06.10.1999 is also placed on record to show that plaintiff wanted half share to be mutated in her name on the basis of document already furnished with letter dated 12.5.2000. When DDA has refused to consider the request of the plaintiff then cause of action arose and that letter is 12.5.2000 i.e. EX. PW-1/85, hence suit filed on 05.2.2001 is within three years of the same and suit is held to be within limitation. Accordingly, this issue is decided in favour of plaintiff and against the defendants.
13.Issue No. 2. Whether compromise judgment and decree dated 30.1.75 passed by Ld. Sub-Judge in Suit No. 18/75 is null and void and against statutory provisions of terms and conditions of allotment?OPD1 & D2:- The judgment and decree dated 30.1.75 is on record which is legal document. It has not been set aside. No evidence has come on record as to why judgment and decree is required to be set aside. No undue coercion, influence and pressure on Maheshwari Seth has been proved. Rather, Maheshwari Seth has gone one step ahead in his evidence by stating that affidavit filed in this case has been got CS-373/09/01 Page:-15/21 signed under pressure. He has also admitted that DDA has written one letter to her in respect of suit property wherein it was stated that property be transferred in the name of plaintiff. She has also admitted that she has made statement in court earlier but simultaneously stated that statement was got under pressure. That statement was made before court and now again she is saying that signatures made in the court on affidavit filed in present case has also been got signed under pressure. So she is changing the stand again and again and is not believe worthy witness who is deposing as per circumstances which suits to her. The nature of pressure and as to who exerted pressure is not proved on record. The presumption of correctness is attached to court proceedings and parties cannot wriggle out of the same as per her whims and wishes. So this issue is decided in favour of plaintiff and against defendants and decree dated 30.1.75 is binding on her.
14.Issue No. 3. Whether suit has not been valued properly for the purpose of court fees?OPD1 & D2:- The onus to prove this issue was on the defendant but he has failed to prove the same. The suit is for mandatory and prohibitory injunction on which proper court fee has been paid. It is not made out as to what court fee was required to be paid. There is no need to pay ad- velorum court fee on the value of the property. Accordingly, this issue is also decided in favour of plaintiff and against defendants.
15.Issue No. 4. Whether after death of Madan Mohan, the property was mutated in the exclusive name of defendant No. 5 on basis of wrong declaration made by her?OPD1 & D2. and issue No. 5. Whether the agreement entered into CS-373/09/01 Page:-16/21 between Sh. Madan Mohan Seth was illegal and against public policy and was unregistered and cannot be given effect to?OPD 3 to D8. and Issue No. 6. Whether plaintiff constructed first floor from her own resources?OPP and Issue No. 7. Whether plaintiff is a licencee in the property with no rights? OPD 5 to D8 and issue No. 8. Whether plaintiff is entitled to decree of mandatory injunction as prayed for? and Issue No. 9. Whether plaintiff is entitled to prohibitory injunction as prayed for?:- All these issues are taken up together as they are inter-connected. From evidence it is clear that it is not simple case wherein no transaction between Madan Mohan Seth and plaintiff took place. From documents and file and specially compromise judgment and decree dated 30.1.75 it is crystal clear that there seems to be some understanding that 50% share be given to plaintiff. Though counsel for defendant has tried to wriggle out of compromise decree dated 30.1.75 by saying that only possession of plaintiff on first floor was admitted by Maheshwari Seth wife of deceased M.M. Seth and no ownership right can be given to plaintiff but one fact cannot be ignored that she has stated in statement that "Dawawadi durrust hai taslim hai. Main pratiwadi ground floor per bane huye makan ki swam malik hu or pehli manzil par bane huye imarat ki malik meri behen Shakuntala Devi hai". Moreover this statement has been admitted by Maheshwari Seth in this court while deposition. The statement is Ex. PW-1/5. The plaint of the suit Ex. PW-1/4 is also on record in which also it was mentioned that plaintiff made 50% of the installment and M.M.Seth willingly transferred 50 % share to the plaintiff as on allotment. It was also CS-373/09/01 Page:-17/21 agreed that none of them shall sell their share or use building thereupon and both the parties would enjoy the benefits of lease hold but before same could be done Sh. M.M. Seth died, so in a way it is correct that some oral understanding took place between the parties but there is no sale deed or registered document and unregistered document after gap of so many years cannot be given effect to as mere agreement to sell does not confer right, title or interest in the suit property. Moreover this admission has been made only by Maheshwari Seth. She is only bound by statement so even if this oral agreement is not given effect to, she cannot claim full share on this property. She has also admitted that plaintiff constructed first floor of property out of her own money so she is debarred from claiming full rights over property and plaintiff is protected U/s 53 (a) of T.P. Act as he is in possession of part premises so mutation in the name of defendant No. 5 exclusively cannot be allowed to sustain. Though, counsel for plaintiff has argued that Ex. PW-1/3 was entered into between parties but same has not been culminated into suit for specific performance and also beyond limitation cannot be given effect to. Moreover, this agreement dated 25.03.1972 was never pleaded in the plaint Ex. PW-1/4 which was filed on 03.1.75. If this agreement was in possession there was no need not to mention same in the suit which was first available opportunity. Rather, in para 4 in Ex. PW-1/4 it was stated that M.M. Seth has agreed that he would willingly transfer to plaintiff half share which was never reduced into writing. So possibility cannot be ignored that this document may have been created for the purpose of this case. This property as per plaintiff should have devolved upon Sh. M. M. Seth's legal CS-373/09/01 Page:-18/21 heirs to the extent of 50% and for remaining 50% was claimed by plaintiff so each defendants No. 5 to 8 have automatically 12.5% share each which is for the 50% share of M. M. Seth and for alleged 50% share of plaintiff, defendant No. 5 is only debarred from claiming 12.5% share as she is bound by her statement but she cannot bound other legal heirs and plaintiff cannot be held entitled for it. The counsel for plaintiff has relied upon one letter dated 27.4.1973 issued by DDA whereby property was mutated in the name of Maheshwari Seth which infact was entered on the letter issued by Society Secretary on 29.3.73 annexing the application of Maheshwari Seth and two relinquishment deed of defendant No. 6 and 8 so it was stated that now these two persons are not entitled to the share also. The question is that defendant No. 7 never applied for mutation and never given consent of mutation in the name of Maheshwari Seth and never admitted claim of plaintiff. Relinquishment deed in favour of defendants No. 6 and 8 have also not come on record. The consent of defendant No. 6 and 7 has not been proved. So in these circumstances, it is crystal clear that defendant No. 6 to 8 are not bound by act of mother and consent cannot be held to be given by defendants No. 6 to 8 at any point of time for allowing the mutation in the name of Maheshwari Seth. So in fact, in all circumstances, it can be stated that after death of M.M. Seth mutation could have been effected in the name of Defendant No. 5 to 8 as LRs and not exclusively in the name of defendant No. 5 but subject to right of plaintiff who was protected U/s 53 of T. P. Act. Cumulative effect of the discussion is that issue No. 4 is decided in favour of defendants No. 6 to 8 and against plaintiff and defendant No. 5 and property could not have CS-373/09/01 Page:-19/21 been mutated solely in the name of defendant No. 5 and issue No. 5 is decided against plaintiff and alleged agreement entered into between M.M. Seth and plaintiff cannot be given effect to. Issue No. 6 is decided in favour of plaintiff and against defendant. The plaintiff cannot be termed as licencee but protected under Statutory right. Thus in these circumstances, the plaintiff cannot claim its full 50% ownership right over suit property. He should have got his agreement allegedly converted into sale deed if any existed in his favour by way of specific performance. The written agreement has not been accepted by court. The oral agreement, if any had not been made basis of any suit and no decree of specific performance was obtained, so at the most she is entitled to protection of his possession as admitted by defendant No. 5 to the extent of her share so even though plot is entered into name of plaintiff and defendant No. 5 to 8 to the extent of their share and mutation will not affect plaintiff's rights of possession to the extent of 12.5% share and she can continue to enjoy the long, uninterrupted, continuous and hostile possession. So the 50% share will devolve upon defendants No. 5 to 8 equally and 37.50% share will devolve upon defendants No. 6, 7 and 8 in equal share, meaning thereby defendant No. 5 will be entitled for 12.5 % and defendants No. 6 to 8 will entitled to the extent of 25% each and plaintiff will be entitled for 12.5% share. So all these issues are decided as discussed above.
16. Relief:- In view of the above finding, the suit of the plaintiff stands partly decreed with observation that she is entitled to protect the possession on property but cannot claim ownership which is vested in favour of defendant No. 6 to 8 to the extent of 87.5%.
CS-373/09/01 Page:-20/21 The 50% share will devolve upon defendants No. 5 to 8 equally and 37.50% share will devolve upon defendants No. 6, 7 and 8 in equal share, meaning thereby defendant No. 5 will be entitled for 12.5 % and defendants No. 6 to 8 will entitled to the extent of 25% each and plaintiff will be entitled for 12.5% share. Decree sheet be prepared accordingly and file be consigned to Record Room.
Announced in open court on (Ajay Goel) 13.05.2013 ADJ-14(Central)/Delhi. CS-373/09/01 Page:-21/21