Delhi District Court
Ram Avtar vs Ram Avtar & Ors. Page 1 Of 13 on 16 September, 2016
IN THE COURT OF MS. POOJA TALWAR:
JSCC-CUM-ASCJ-CUM-GUARDIAN JUDGE (SOUTH):
SAKET COURTS, NEW DELHI
Suit No. 1028/2009
CNR No.: DLST03-000806-2015
In the matter of :-
Ajit Singh
S/o Late Aji Ram
R/o 294-B-2, Chirag Delhi,
New Delhi. ......Plaintif
VERSUS
1. Ram Avtar
S/o Sh. Gokal Chaudhary
R/o 294-B-2, Chirag Delhi,
New Delhi.
2. Aji Ram
S/o Late Nand Lal
R/o 493, Chirag Delhi,
New Delhi.
(represented through his legal heirs)
Plaintiff and defendants 3 to 5 are
her four sons and the remaining
is a daughter namely:
2(a) Sushila Devi
W/o Sh. Ram Chander
R/o WZ-504 A, Basai-Dharapur,
New Delhi.
3. Suraj Bhan
S/o Late Aji Ram
CS No. 1028/2009 Ajit Singh Vs. Ram Avtar & Ors. Page 1 of 13
R/o 294-B-2, Chirag Delhi,
New Delhi.
4. Bhupinder Singh
S/o Late Aji Ram
R/o 493, Chirag Delhi,
New Delhi.
5. Narain
S/o Late Aji Ram
R/o 294-B-2, Chirag Delhi,
New Delhi. .....Defendants
Date of institution : 24.07.2009
Reserved for Judgment : 29.08.2016
Date of decision : 16.09.2016
JUDGMENT
1. The present suit has been filed by the plaintiff seeking declaration and permanent injunction against the defendants.
2. Brief facts as stated in the plaint are that plaintiff is stated to be owner of 1/4 th share of property bearing No. 294- B-2, Chirag Delhi, New Delhi (hereinafter referred to as suit property) as well as other property left by the grandfather of plaintiff. Plaintiff is in peaceful physical possession of part of the suit property. Late grandfather of the plaintiff Sh. Nand Lal had four sons. The suit property alongwith property no. 493, Chirag Delhi, New Delhi came into the share of Aji Ram, father of plaintiff and defendant no. 2 to
5. The other three sons of Late Nand Lal are in possession of their respective shares. Grandfather of plaintiff died intestate CS No. 1028/2009 Ajit Singh Vs. Ram Avtar & Ors. Page 2 of 13 leaving behind Aji Ram, four grand sons and a grand daughter. Hence, plaintiff, defendant no. 2 to 5 and their sister are the co-owners of the suit property as well as property no. 493, Chirag Delhi, New Delhi. The abovesaid properties were transferred in the name of Aji Ram for the purpose of tax. The plaintiff and defendants are staying in the property and the said property has not been partitioned by metes and bounds among the legal heirs of Aji Ram. The father of plaintiff constructed about 37 sq. yards of the property in the year 2006 and the plaintiff paid the proportionate expenses incurred in construction of the said property. The said property is constructed upto ground, first, second and third floor. Defendant no. 4 managed to procure some forged and fabricated receipts of the building material etc and got executed some documents in favour of defendant no. 1 without the knowledge and consent of plaintiff. The constructed portion of the suit property was let out to defendant no. 1 for a monthly rent of Rs. 6,000/-. Later defendant no. 1 in connivance with defendant no. 4 sub-let the ground, second and third floor to his relatives. Defendant no. 2 is suffering from mental disease and is under treatment for last 3-4 years. Defendant no. 4 in collusion with other defendants obtained signatures of defendant no. 2 and forged and fabricated certain documents in his favour. Defendant no. 2 has not executed any registered deed or will in favour of any of the defendants. Defendant no. 4 in collusion with other defendants CS No. 1028/2009 Ajit Singh Vs. Ram Avtar & Ors. Page 3 of 13 forged and fabricated documents in their favour showing them as the owners of the property in question. Defendant no. 4 had executed a GPA in favour of defendant no. 1 illegally and unauthorizedly. This fact came to the knowledge of plaintiff on 20.06.2009. Aji Ram had no right, title or interest in the suit property as he is a co-owner and not the absolute owner. Thus, he did not have the capacity to execute any document. Plaintiff is entitled to 1/4th share in all the properties of his late grandfather. The defendants in collusion with each other are trying to sell out the property which does not exclusively belong to them. Hence, the suit.
3. Defendant no. 1 filed his written statement. It is the contention of defendant no. 1 that the plaintiff has deliberately not stated the measurement of the property in his possession out of property no. 294-B-2, Chirag Delhi, New Delhi. Defendant no. 1 is in possession of 50 sq. yards which is duly built up upto three storeys. The said property was constructed by defendant no. 1 who spent Rs. 15,00,000/- on the construction. The other three portions of property no. 294-B-2, Chirag Delhi, New Delhi are in possession of plaintiff as well as defendant no. 3 and 5 in equal shares. The property in question has been purchased from defendant no. 4 who is the absolute owner of said 50 sq. yards property for a consideration of Rs. 5,00,000/-. Defendant no. 4 has executed all the relevant documents dated 28.11.2006. Vacant physical possession was handed over to defendant no. 1. The present CS No. 1028/2009 Ajit Singh Vs. Ram Avtar & Ors. Page 4 of 13 suit has been belatedly filed by plaintiff in order to harass defendant no. 1. Defendant no. 1 is a bonafide purchaser for consideration. Suit against him is not maintainable.
Defendant no. 2 also entered into contest by filing his separate written statement. It is stated that he has orally partitioned the property and has given rightful shares to the plaintiff and his other sons. The plaintiff has constructed his property which fell in his share and he is residing in the same with his family. Plaintiff has been harassing defendant no. 2 by grabbing all his pensions and used to manhandle him. Defendant no. 2 was thrown out of the property and he started residing with defendant no. 4 in house no. 493, Chirag Delhi, New Delhi. The said house was renovated and reconstructed by defendant no. 4 with his own funds as the said house fell in the share of defendant no. 4 on oral partition between plaintiff and defendant no. 2 to 4. Since the plaintiff is a habitual drunkard, defendant no. 2 executed the property papers in the name of wife of plaintiff. All the properties have been partitioned by defendant no. 2 amongst himself and his sons and each is residing in his respective share. All the sons of defendant no. 2 have constructed their property and are residing in their shares except defendant no. 4 who has sold his share to defendant no. 1 as he was in need of money. Defendant no. 2 has executed a Power of Attorney in favour of defendant no. 4 and 5 and has authorized them to build up their shares as per their means. The other contentions in the plaint are categorically denied.
CS No. 1028/2009 Ajit Singh Vs. Ram Avtar & Ors. Page 5 of 13A joint written statement was filed by defendant no. 3 and 4. They have the similar contentions as those raised by defendant no. 2 and have averred on similar lines as stated by defendant no. 2 in his written statement.
4. On the basis of pleadings, the following issues were framed:-
1. Whether the plaintiff has suppressed the material facts from the Court and he is not entitled for the discretionary relief, as prayed for? OPD
2. Whether the suit of the plaintiff is not maintainable and is barred by the provisions of the Specific Relief Act?OPD1
3. Whether the plaintiff has not properly valued the suit property, if so, how? OPD1
4. Whether plaintiff is entitled for decree of declaration, as prayed for in the suit? OPP
5. Whether plaintiff is entitled for a decree of permanent injunction as prayed for? OPP
6. Relief.
5. Plaintiff stepped into the witness box as PW1. He relied upon documents Ex.PW1/1 to Ex.PW1/2. One Bal Ram was examined as PW2. Sh. Mahender Singh deposed as PW3. Sh. Vimal Kumar, Head Clerk from the office of Sub-Registrar-V was examined as PW4.
Defendant no. 1 was examined as DW1. He relied CS No. 1028/2009 Ajit Singh Vs. Ram Avtar & Ors. Page 6 of 13 upon documents Ex.DW1/1 to Ex.DW1/20.
Defendant no. 2 testified as DW2. Sh. Dalip Singh was examined as DW3.
Defendant no. 4 was examined as D4W1. He relied upon documents Ex.DW4/A. One Sanjeev Kumar from BSES was examined as DW6. Sh. Jasbir Singh, Head Clerk from Delhi Jal Board examined as DW7. Suraj Bhan was examined as DW8. Ms. Shakuntala Rani, Notary Public was examined as DW5.
6. Arguments advanced by rival counsels have been heard. Records perused carefully.
7. My issues wise findings are as follows:-
Issue no. 1 Whether the plaintiff has suppressed the material facts from the Court and he is not entitled for the discretionary relief, as prayed for? OPD The onus to prove this issue was on the defendants. It was for defendants to prove that plaintiff has suppressed material facts. It is stated by defendant no.1 in his written statement that plaintiff has deliberately not given the measurement of the property and has neither filed the complete and correct site plan hence, the plaintiff has suppressed material facts.
The present suit has been filed by the plaintiff seeking declaration of certain documents as null and void. The identification of the property is not in dispute. Hence, the non CS No. 1028/2009 Ajit Singh Vs. Ram Avtar & Ors. Page 7 of 13 mentioning of the measurement of the property would not adversely affect the case of the plaintiff. Defendant no. 1 has failed to prove how the site plan filed by the plaintiff is defective. He has not even proved the site plan filed by him. In these circumstances, defendant no. 1 has failed to prove the onus cast upon him. Accordingly, this issue is decided in favour of the plaintiff.
Issue no. 2 Issue no. 3 Whether the suit of the plaintiff is not maintainable and is barred by the provisions of the Specific Relief Act?OPD1 Whether the plaintiff has not properly valued the suit property, if so, how? OPD1 The onus to prove these two issues was on defendant no.1. It is the claim of defendant no. 1 that the suit in the present form is not maintainable as the plaintiff has sought simplicitor declaration without seeking the relief of possession. Admittedly, plaintiff is not in possession of property. Hence, along with the declaration, the plaintiff was also required to seek possession of the property. The plaintiff has not valued the suit as per the value of the property which is more than Rs.50,00,000/-.
Instant suit filed by the plaintiff is for declaration of the documents as null and void. The plaintiff has not sought a declaration qua the property as an owner, accordingly, he was not required to value the suit as per the value of the property.CS No. 1028/2009 Ajit Singh Vs. Ram Avtar & Ors. Page 8 of 13
Moreover, the documents against which a declaration is sought have been executed by defendant no. 4 and plaintiff is not the executant of the said documents. Hence, he is not required to value the suit as per the value of the property. The issue of ownership is not involved as it is a simplicitor suit of declaration qua the documents.
Defendant no. 1 has failed to discharge the onus caste upon him to prove these issues. Accordingly, both these issues are decided in favour of the plaintiff.Issue No. 4
Whether plaintiff is entitled for decree of declaration, as prayed for in the suit? OPP The onus to prove this issue was on the plaintiff. It was for plaintiff to prove that he is entitled to seek declaration of the documents dated 28.11.2006 executed by defendant no. 4 in favour of defendant no. 1 as null and void. It is claim of plaintiff that he is co-owner of the property bearing no.294-B-2, Chirag Delhi, New Delhi alongwith defendant no. 2 to 5 who happened to be his father and brothers respectively. The factum of property being devolved upon defendant no. 2 through his father Nand Lal is undisputed. It is also not disputed that the property stands mutated in the name of defendant no. 2. Hence, defendant no. 2 is a material witness.
The stand of defendant no. 2 has been contradictory throughout the case as in his statement under Order 10 CPC before the Court, he deposed that he had never granted CS No. 1028/2009 Ajit Singh Vs. Ram Avtar & Ors. Page 9 of 13 permission to defendant no. 4 to sell the property to defendant no. 1. Whereas in his written statement as well as his testimony before the court, he stated that he had issued a Power of Attorney in favour of defendants no. 4 and 5. His contradictory statements cannot be relied upon.
The plaintiff has testified that he is a co-owner of the property along with defendants no. 2 to 5 and that no partition has taken place between the parties. Plaintiff in order to prove the said stands has examined Sh. Bal Ram as PW2 who has deposed that the entire property was constructed by defendant no. 2. He has stated that he is not aware whether the suit property has been partitioned or not. Similarly, Sh. Mahinder Singh has examined as PW3. He too deposed that he is not aware if the property has been partitioned by defendant no. 2. All these witnesses though have deposed that they are not aware about the partition but their testimony would not be of much relevance for the reason they have stated that they have been asked by the plaintiff to come before the Court and that they are not aware about the contents of their affidavits.
However, defendant no. 3 who had filed his joint written statement with defendant no. 4 and has even stated in his evidentiary affidavit that the property has already been partitioned and supported the case of defendant no. 4 but during his cross examination, he deposed that he is unaware about the contents of his written statement as well as of his affidavit as they were got prepared by defendant no. 4. He CS No. 1028/2009 Ajit Singh Vs. Ram Avtar & Ors. Page 10 of 13 admitted in his cross examination that the property has neither been partitioned nor any GPA was executed by his father in favour of defendants no. 4 and 5. He has thus supported the case of the plaintiff.
Once it is claimed by defendant no. 4 that the property has been partitioned, the onus shifted upon him to prove the same. The only person who supported the case of defendant no. 4 was defendant no. 2 whose testimony cannot be read owing to contradictory stands taken by defendant no.
2. It is admitted by defendant no. 4 that earlier a complaint Ex.DW4/P2 was filed by defendant no. 2 against defendant no. 4 which further substantiates the claim of plaintiff that no GPA has been executed by defendant no. 2 in favour of defendant no. 4.
The only document through which defendant no. 4 claims himself to be the absolute owner of the suit property which was sold to defendant no. 1 is GPA Ex.DW4/A which the defendant has failed to prove as per law. Even DW5 who had allegedly attested the said GPA has deposed against defendant no. 4.
Since defendant no. 4 has failed to prove his absolute ownership qua the suit property hence he did not have the right to execute any document in favour of defendant no. 1 or transfer the property in name of defendant no.1.
Defendant no. 4 has failed to prove that the property was partitioned or that all the brothers have become CS No. 1028/2009 Ajit Singh Vs. Ram Avtar & Ors. Page 11 of 13 the absolute owners of their respective shares which are being occupied by them. Though, defendant no. 4 has been able to establish on record that plaintiff, defendant no. 4 and 5 are in possession of their respective shares and they have separate electricity and water connections in their names but having separate connections does not prove that the plaintiff and defendants no. 4 and 5 have become the absolute owners of the property in their possession or that partition has taken place. Thus, the defendant no. 4 has failed to establish on record that he had become the absolute owner of the suit property and therefore, entitled to transfer the same in the name of defendant no. 1. This issue accordingly is decided in favour of the plaintiff.
Since it has come on record that defendant no. 1 had purchased the suit property from defendant no. 4 for consideration, he is entitled to seek his remedies against defendant no. 4 separately.
Issue No.5 Whether plaintiff is entitled for a decree of permanent injunction as prayed for? OPP The onus to prove this issue on the plaintiff. It was for plaintiff to prove that he is entitled to decree of restrainment against the defendants restraining them from demolishing or changing the structure of the property or from creating third party interest.
In view of observation in Issue no. 4, the plaintiff has CS No. 1028/2009 Ajit Singh Vs. Ram Avtar & Ors. Page 12 of 13 been able to establish on record that the documents executed by the defendant no. 4 in favour of defendant no. 1 are null and void accordingly, neither of the defendant is the absolute owner of the suit property hence, not entitled to change the structure of the property or create third party interest in the property without the consent of all the parties. This issue is accordingly decided in favour of the plaintiff.
Relief In view of foregoing observations on all the issues, the suit of the plaintiff is decreed in the following terms:-A decree of declaration is passed in favour of plaintiff and against the defendants thereby documents dated 28.11.2006 executed by defendant no. 4 in favour of defendant no. 1 are hereby declared as null and void in respect of suit property. Further, defendants are restrained from demolition, changing the existing structure of the suit property. Defendants (particularly defendant no. 1) are restrained from selling, transferring, parting with or creating third party interest in the suit property or any part of the suit property. Parties to bear their own costs. Decree sheet be drawn accordingly. File be consigned to Record Room.
(Pooja Talwar) JSCC-cum-ASCJ-cum-GJ (South) South District: Saket Courts: New Delhi Announced in the open court today i.e 16th September, 2016 CS No. 1028/2009 Ajit Singh Vs. Ram Avtar & Ors. Page 13 of 13