Delhi District Court
Shakuntla Devi vs Bimla Devi Anr on 29 March, 2025
CS DJ No. 613224/2016
IN THE COURT OF MR. JITEN MEHRA: DISTRICT
JUDGE-10: TIS HAZARI COURTS: DELHI.
CS DJ NO.613224/2016
CNR NO. DLCT01-000272-2007
DLCT010002722007
In the matter of:
Smt. Shakuntla Devi,
(since deceased, represented through LRs)
1a. Sh. Sushil Chander Sharma
S/o Late Sh. Rajinder Pal Sharma,
R/o H-72, Shivaji Park,
Punjabi Bagh, New Delhi - 110026.
1b. Mrs. Asha Sharma,
W/o Sh. S.C. Sharma,
R/o B-232, Saraswati Vihar,
New Delhi-110034.
ic. Mr. Jugal Kishore Sharma
(since deceased, represented through LRs)
i. Sh. Kartika
S/o Sh. Jugal Kishore Sharma,
R/o H-72, Shivaji Park,
Punjabi Bagh, New Delhi - 110026.
ii. Sh. Kunal
S/o Sh. Jugal Kishore Sharma,
R/o H-72, Shivaji Park,
Shakuntala Devi v. Bimla Page No. 1/138
CS DJ No. 613224/2016
Punjabi Bagh, New Delhi - 110026.
.....Plaintiffs
Versus
1. Bimla Devi,
(Since deceased, represented through LRs)
1a. Mrs. Santosh Sharma
W/o Sh. Asa Ram
R/o 2/95, Sunder Vihar, New Delhi-85.
1b. Mrs. Sudesh Sharma,
W/o Sh. Anil Kumar Dogra
R/o 158-D, GH-2, Paschim Vihar,
New Delhi-110063.
1c. Mrs. Anita Sharma
W/o Sh. Sat Prakash
R/o Staff Quarters, Himachal Bhawan,
Mandi House, New Delhi-110001.
id. Mrs. Saroj Sharma,
W/o Sh. Mukesh Sharma
R/o H. No.230/26, Gali no.8,
Mandawali, Delhi-110092.
2. Sh. Surinder Kumar Sharma
S/o Late Sh. Janak Raj Sharma
R/o H-72, 2nd Floor, Shivaji Park,
Punjabi Bagh, New Delhi - 110026.
.....Defendants
Date of Institution of the Suit : 28.03.2007
Date on which Judgment was reserved : 11.03.2025
Date of Judgment : 29.03.2025
Shakuntala Devi v. Bimla Page No. 2/138
CS DJ No. 613224/2016
SUIT FOR POSSESSION, RECOVERY OF ARREARS
OF MESNE PROFITS/DAMAGES FOR ILLEGAL USE
AND OCCUPATION
JUDGMENT:
1. The plaintiff has filed the present suit for possession and recovery of arrears of mesne profits/damages for illegal use and occupation against the defendants no.1 and
2.
2. The plaintiff and the defendant no.1 both expired during the pendency of the present suit and their respective legal representatives (LRs) were brought on record vide orders dated 04.08.2009 and 16.03.2010 respectively. The plaintiff was survived by her two sons and one daughter and the application under Order XXII rule 4 CPC moved on behalf of Ms. Anita and Ms. Sudesh Sharma and also on behalf of Ms. Santosh and Ms. Saroj Sharma was allowed being LRs of the deceased defendant no.1. PLAINTIFF'S VERSION AS PER THE PLAINT:
Shakuntala Devi v. Bimla Page No. 3/138 CS DJ No. 613224/2016
3. As per the plaint, the plaintiff Smt. Shakuntla Devi is the absolute and exclusive owner of property no. H-72, Shivaji Park, Punjabi Bagh, New Delhi - 110026, which is a three storeyed house built on a plot of 249 sq. yards (hereinafter referred to as the 'suit property'), which was the self-acquired property of her husband Late Sh. Rajinder Pal Sharma, who had purchased the same from DLF in 1952 and raised the construction thereon as well. On the demise of Sh. Rajinder Pal Sharma on 04.06.2001, the suit property was inherited by the plaintiff being his sole legal successor by virtue of the relinquishment deeds executed by the other legal heirs of Late Sh. Rajinder Pal Sharma. The suit property has also been mutated in the name of the plaintiff in the MCD records on 23.8.2005.
4. Late Sh. Janak Raj Sharma was the youngest brother of the plaintiff's husband and also the husband of the defendant no.1 and father of the defendant no.2. During the lifetime of the plaintiff's husband, in the late 1970's Shakuntala Devi v. Bimla Page No. 4/138 CS DJ No. 613224/2016 Late Sh. Janak Raj Sharma was posted at Secunderabad at the time when his wife ie. the defendant no.1, was expecting their child. However, he threw out the defendant no.1 from their home and also deserted her. The defendant no.1 came to Delhi along with one of her daughters and sought shelter from the plaintiff's husband, who on account of love, affection and humanitarian grounds permitted the defendant no.1 and their minor daughter to reside in the suit property, without payment of any charges.
5. A few years later, the defendant no.2 along with his sister were also thrown out of the house by their father and they also joined the defendant no.1 at the suit property. In such manner, the defendant no.1 along with her five minor children started living in the suit property under the shelter and full financial care of the husband of the plaintiff.
6. The husband of the defendant no.1 Late Sh. Janak Shakuntala Devi v. Bimla Page No. 5/138 CS DJ No. 613224/2016 Raj Sharma also came to Delhi after his retirement and started living under the shelter and financial support of the husband of the plaintiff and died in May, 1979, without doing anything for his family.
7. In 1977, the plaintiff extended financial help to the defendant no.2 to purchase a plot of land measuring 330 sq. yards at Bahadurgarh for Rs. 20,000/- so the defendants could build their own house in phases. However, when the price of land increased, the defendant no.2 sold the said plot in 1990 for Rs. 2 Lakhs under a wrong advice that the defendants should not build their own house after leaving the suit property.
8. The plaintiff's husband also got married the three daughters of his brother Late Sh. Janak Raj Sharma and educated the defendant no.2 as well. The defendant no.2 got married while residing in the suit property and is presently residing there with his wife and daughter along Shakuntala Devi v. Bimla Page No. 6/138 CS DJ No. 613224/2016 with the defendant no.1 on the second floor of the said property as a permissive user by the plaintiff's husband.
9. It is stated that acting under the malevolent advice of the defendant no.2, the defendant no.1 had applied to the MCD for mutation of the entire second floor, depicted in red in the site plan filed along with the plaint, in her own name on the basis of an alleged family settlement deed dated 09.05.1987 claiming ownership thereof, which is stated to be forged and fabricated.
10. The said application for mutation of the defendant no.1 was referred by the MCD to the plaintiff, who objected to the same and the application ultimately rejected with the remarks that the defendant no.1 should bring a succession certificate in her favour with respect to the second floor of the suit property from the competent authority.
Shakuntala Devi v. Bimla Page No. 7/138 CS DJ No. 613224/2016
11. It is stated that the mala fide and fraudulent actions of the defendants in forging and fabricating the signatures of the plaintiff's husband have also been reported to the P.S. Punjabi Bagh, New Delhi and accordingly being pursued.
12. On the death of the plaintiff's husband Late Sh. Rajinder Pal Sharma, the defendants blocked the wooden stairs to the roof of the property, which goes through the second floor occupied by them causing great hindrance in the peaceful possession of the property by the plaintiff.
13. Further, on the death of the plaintiff's husband, the plaintiff requested both the defendants verbally many times to vacate the said second floor of the suit property along with the roof, however to no avail and the matter was postponed on one pretext or another.
14. In order to avoid prosecution by the police on the Shakuntala Devi v. Bimla Page No. 8/138 CS DJ No. 613224/2016 complaint of the plaintiff, the defendant no.1 gave in writing to the PS, Punjabi Bagh, New Delhi that she would not be claiming any right in the suit property on the basis of the alleged family settlement. The defendant no.1 further stated that she will write to the MCD withdrawing her application for modification of the mutation. Further, both the defendants agreed in the police station that they would peacefully vacate the suit property immediately, which was not done by them.
15. The plaintiff therefore issued a legal notice dated 22.01.2007 calling upon them to vacate the second floor of the suit property and hand over the vacant possession of the same within 15 days of receipt failing which damages of Rs.10,000/- per month would be recovered from them from 01.02.2007 onwards. The defendants refused the service of the said legal notice, which was sent by registered A/D post and the envelopes were returned on 25.01.2007. however, the legal notice sent by UPC was Shakuntala Devi v. Bimla Page No. 9/138 CS DJ No. 613224/2016 duly served on the defendants, however the defendants still did not vacate the said second floor.
16. Therefore, the defendants are stated to be in illegal and unlawful occupation of the entire second floor of the suit property, despite having no right, title or interest in the same and are liable to be ejected and also liable to pay mesne profits @ Rs. 10,000/- per month from 1.02.2007. Hence, the plaintiff prays for a decree of possession of the second floor of the suit property along with mesne profits @ Rs. 10,000/- per month till vacation along with interest @ 18% per month and costs of the suit.
DEFENDANTS' VERSION AS PER THE WRITTEN STATEMENT:
Combined written statement of the defendants no.1 and 2:
17. The defendants no. 1 and 2 filed a combined written statement in which the preliminary objections were raised that the plaintiff had no locus standi to file the present suit Shakuntala Devi v. Bimla Page No. 10/138 CS DJ No. 613224/2016 which had also not been properly valued or proper court fees affixed thereon as the value of the property was more than Rs.80,000/- and the court had no pecuniary jurisdiction to try the same.
18. It was further submitted that the plaintiff had suppressed the material fact that there is a joint Jindu Undivided Family (HUF), which was managed, run and controlled by late Smt. Udhmi Devi, wife of late Pt. Parmeshwari Dass. Her husband Pt. Parmeshwari Dass is stated to have originally belonged to Village Oel, Tehsil Amb, Una District, Himachal Pradesh and expired when his wife was merely 28 years old leaving behind four sons namely Rajinder Pal Sharma, Satpal Sharma, Jaswant Rai Sharma and Janak Raj Sharma and one daughter Sheela Devi. All the four sons studied in the village school and after passing metric, shifted to Delhi.
19. The only source of income of Smt. Udhmi Devi was Shakuntala Devi v. Bimla Page No. 11/138 CS DJ No. 613224/2016 agricultural land, which was still in the name of all the family members.
20. In Delhi, all four brothers joined the 505 Army Based Workshop, Delhi Cantt. Sh. Janak Raj Sharma, worked in the said workshop for five years and in April, 1948 joined the Indian Army, EME Division and was posted at Bangalore. All the brothers were giving their salaries to their mother Smt. Udhmi Devi, who was running the entire Joint Hindu Undivided Family till her death on 16.06.1970. One of the brothers, i.e. Sh. Satpal Sharma is stated to have expired in 1959 as a bachelor. As per the defendants, since all the male members were earning very meager income, hence the entire family was living in a rented premises firstly in Naraina Village and thereafter shifted to Sarai Rohilla.
21. Later on, in the year 1952, Smt. Udhmi Devi, purchased the property in question from the common funds Shakuntala Devi v. Bimla Page No. 12/138 CS DJ No. 613224/2016 contributed by all her sons, but the sale deed was got executed in the name of Sh. Rajinder Pal Sharma, who was the eldest male member in the family as per the customs and traditions prevailing in the Hindu Undivided Family.
22. Initially, the ground floor was constructed out of the funds of the Hindu Undivided Family in the year 1961- 1962 comprising of three bed rooms, one drawing cum dining room, kitchen, bath and latrine. All the family members of late Smt. Udhmi Devi resided on the said ground floor along with their wives and children and maintained a common kitchen till February, 1987.
23. With the passage of time and due to increase in the number of family members on account of marriages of the sons and daughters of Sh. Rajinder Pal Sharma, the first floor of the property was also constructed out of the joint funds of the Hindu Undivided Family.
Shakuntala Devi v. Bimla Page No. 13/138 CS DJ No. 613224/2016
24. In the meanwhile, the husband of the defendant no.1 also retired from the Indian army in April, 1971 and joined his family in Delhi. It is stated that he spent all his retirement benefits including provident fund, gratuity etc. on the construction of the said first floor portion of the property in question. Post retirement, he also joined B.E.L under the ministry of defence and was working with the said organization till the time of his death on 1.05.1979. Whatever service benefits were received from B.E.L on his death were also handed over by the defendant no.1 to Late Sh. Rajinder Pal Sharma, who was the head of the Joint Hindu Undivided Family and managing all the finances as well. Further, it is stated that all the working members of the joint family were giving their salary to the plaintiff.
25. In the year 1985, on account of marriages of the children of Sh. Janak Raj and consequent increase in the number of family members, it was orally decided and settled among the family members that the entire ground Shakuntala Devi v. Bimla Page No. 14/138 CS DJ No. 613224/2016 floor of the suit property would be owned, occupied and possessed by the family members of Sh. Rajinder Pal Sharma. The entire first floor would similarly go to the family of Sh. Jaswant Rai Sharma and the entire second floor of the suit property, which was yet to be constructed, would go to the share of the family of Sh. Janak Raj Sharma.
26. In the year 1986, the second floor of the suit property was got constructed and the defendant no.1 furnished the same with the funds of her children and paid for her share for the structural construction of the said second floor amounting to Rs.35,000/- to Late Sh. Rajinder Pal Sharma by virtue of account payee cheque bearing no.870764, dated 27.02.1987 drawn on Punjab National Bank, Punjabi Bagh Branch, Delhi which was encashed by him. Late Sh. Rajinder Pal Sharma also executed a receipt to this effect, which was witnessed by Sh. Jaswant Rai Sharma and Sh. Asa Ram Sharma, son in law of the the Shakuntala Devi v. Bimla Page No. 15/138 CS DJ No. 613224/2016 defendant no.1. Accordingly, the defendant no.1 shifted into the said second floor portion of the suit property.
27. At the time of the construction of the second floor, the first floor was occupied by one tenant and it was mutually agreed between the family members that after vacation of the first floor of suit property, Sh. Jaswant Rai Sharma along with his family would occupy the said floor and the second floor would be exclusively and independently used by the defendant no.1 and her other family members in lieu of the share of Late Sh. Janak Raj Sharma in the Joint Hindu Undivided Family. It is further submitted that the defendant no.1 also applied for and got an independent electricity and water connection for the second floor on 19.10.1989 on the advise of Late Sh. Rajinder Pal Sharma who also gave a No Objection Certificate (NOC) with respect to the same.
28. It is further submitted that Sh. Rajinder Pal Sharma Shakuntala Devi v. Bimla Page No. 16/138 CS DJ No. 613224/2016 also executed one deed of family settlement dated 09.05.1987, which was duly notarized and photocopy of the same was handed over to the defendant no.1.
29. Late Sh. Rajinder Pal Sharma unfortunately expired on 04.06.2001 and Sh. Jaswant Rai Sharma expired in February, 2002.
30. After the defendant no.1 occupied the second floor, she also paid her share of the house tax to the husband of the plaintiff till 2001 and thereafter to the plaintiff till 2003. In 2004 the Municipal Corporation of Delhi (MCD) introduced new system of house tax and the defendants started paying seprate tax in her name to the MCD.
31. Even after the demise of Late Sh. Rajinder Pal Sharma all members of the family were residing peacefully in their respective portions, however a dispute arose when the plaintiff applied for mutation of the property in her Shakuntala Devi v. Bimla Page No. 17/138 CS DJ No. 613224/2016 own name with MCD. In the application for mutation, the plaintiff falsely claimed that she was alone entitled to get the said property mutated in her name as she was in actual, vacant and peaceful possession of the entire property. The MCD mutated the property exclusively in the name of the plaintiff on 23.08.2005.
32. When the defendant no.1 came to know about the same, she made a representation for modification of the mutation order dated 23.08.2005 to the Assistant Assessor & Collector, West Zone, New Delhi who issued a show- cause notice to the plaintiff dated 24.05.2006 as to why the mutation done in her name not be cancelled. On this, the plaintiff and her son Sh. Sushil Chander Sharma started putting pressure on the defendant no.1 to withdraw the said representation. On her refusal to do so, the plaintiff lodged a false and frivolous complaint against the answering defendants with PS Punjabi Bagh, New Delhi to further put pressure. The plaintiff and her son also disputed all Shakuntala Devi v. Bimla Page No. 18/138 CS DJ No. 613224/2016 agreements and settlements arrived at between the family members. When the plaintiff could not succeed, the present false and frivolous suit was filed.
33. It was further stated that the suit was bad for non- joinder of necessary and proper parties i.e. the family members of Sh. Jaswant Rai Sharma, who were occupying the first floor of the suit property had not been impleaded.
34. In the reply on merits, the defendants no.1 and 2 denied that the plaintiff was the absolute and exclusive owner of the entire property and the version as stated in the preliminary objections with respect to the property being the Joint Hindu Undivided Family was reiterated. Further it was denied that the defendant no.1 had been deserted by her husband Sh. Janak Raj Sharma and she was accordingly permitted by Sh. Rajinder Pal Sharma to reside in the house out of love and affection. It was submitted that the father of the defendant no.1 Late Pandit Shakuntala Devi v. Bimla Page No. 19/138 CS DJ No. 613224/2016 Babu Ram Kaliya was a rich person, who was working in the railways and was also the priest of the well known temple of Mata Chintpurni at Chintpuri, District Amb, Himachal Pradesh and had spent a lot of money on the marriage of the defendant no.1 and given lots of gifts as she was his only child. The gifts given by the defendant no.1's father are stated to be with the plaintiff. Further, the father of the defendant no.1 also sent Rs.300/- for the college admission of the elder son of the plaintiff Sh. Sushil Chander Sharma at Sonepat, Haryana.
35. Further, the children of the defendant no.1 also started earning from 1966 onwards and all their earnings were given to the head of the Hindu Joint Undivided Family until February, 1987. It was stated that there was no contribution by the children of Sh. Rajinder Pal Sharma towards the joint expenses as Smt. Asha Sharma got married in 1969 and Sh. Sushil Chander Sharma was married in the year 1971. It is submitted that even after the Shakuntala Devi v. Bimla Page No. 20/138 CS DJ No. 613224/2016 death of Sh. Janak Raj Sharma, the husband of the answering defendant no.1, both the pensions were regularly handed over to Sh. Rajinder Pal Sharma towards the expenses of the joint family. The amount received by Sh. Janak Raj Sharma on retirement from the army was partially spent on the construction of the first floor and after his death, the amounts received from BEL were also taken away by Sh. Rajinder Pal Sharma to run the house.
36. It was submitted that Sh. Janak Raj Sharma also contributed to the joint family expenses by giving money to their mother Late Smt. Udhmi Devi and thereafter to the husband of the plaintiff Sh. Rajinder Pal Sharma.
37. It was further submitted that in December, 1964 the defendant no.1 came to Delhi along with her younger daughter and her husband and two children were at Secunderabad, who came to Delhi after their school examinations in May, 1965 and were admitted in a Delhi Shakuntala Devi v. Bimla Page No. 21/138 CS DJ No. 613224/2016 government school.
38. The defendants further denied that Sh. Janak Raj Sharma joined the family in Delhi on his retirement from the Indian army under the shelter and financial support of Sh. Rajinder Pal Sharma and expired without doing anything for his family. It was stated that he was in no need of financial support from Sh. Rajinder Pal Sharma as after retirement from the army he had joined BEL and his children were also working and he was also getting financial hel from his father in law namely Late Pt. Babu Ram Kalia.
39. The defendants further denied that the plaintiff had financially helped the defendant no.2 in purchasing a plot of land at Bahadurgarh for Rs.20,000/-, which was later sold by him. It was submitted that the plaintiff's son-in- law Sh. Sharda Charan Sharma had a plot in Bahadurgarh, who faced shortage of money while constructing his house Shakuntala Devi v. Bimla Page No. 22/138 CS DJ No. 613224/2016 in Saraswati Vihar, Delhi and requested the defendant no.2 to purchase the same. It is submitted that the defendant no.2 paid all the installments and it was thereafter registered in his name as well. The defendant no.2 sold the same in 1980 for Rs.1,28,000/- to clear the debts of the marriage of his youngest sister Smt. Saroj Sharma and Rs.25,000/- was also paid to Sh. Rajinder Pal Sharma as he was in need of money for the court cases of his son Sh. Jugal Kishore Sharma, who had become involved in a dacoity case in Delhi. The defendant no.2 also invested some amount in the construction of a kitchen and two bathrooms on the second floor in 1990.
40. It was also denied that Sh. Rajinder Pal Singh got the daughters of defendant no.1 married and defendant no.2 educated. It is submitted that the first daughter of the defendant no.1, Smt. Santosh Sharma was married to one Mr. Asha Ram Sharma and the marriage took place at Village Oel, Himachal Pradesh for which the entire Shakuntala Devi v. Bimla Page No. 23/138 CS DJ No. 613224/2016 arrangements were made by the father of the defendant no.1 and the catering was done by the cousin of the defendant no.1. The marriages of the second daughter Smt. Sudesh Sharma to Mr. Anil Dogra in 1980 was stated to be performed out of the funds of children of the defendant no.1 as well as money received from her cousin brother after the death of her father. The marriage of the third and fourth daughters was also stated to have been done out of the funds of the children of the defendant no.1.
41. The defendants further denied that the application to MCD for mutation of the second floor in the name of the defendant no.1 was made mischievously and relied on the family settlement deed dated 09.05.1987. It was submitted that the defendants moved an application seeking correction of the mutation of the entire property in the name of the plaintiff, against which the plaintiff and her son filed false police complaints and exerted pressure on her to withdraw the same. The defendants further denied Shakuntala Devi v. Bimla Page No. 24/138 CS DJ No. 613224/2016 blocking the wooden stairs to the roof of the property and stated that the plaintiff had no right over the same. It was further denied that on the death of Late Sh. Rajinder Pal Singh on 04.06.2001, the plaintiff requested the defendants to vacate the suit property, which they refused. The defendants admitted to receiving the legal notice dated 22.01.2007 and stated that the same was also replied to. The defendants denied that they were in illegal and unlawful possession of the second floor of the suit property or that they were liable to pay any mesne profits for the same. The defendants thus sought for dismissal of the suit with special compensatory costs in their favour. Written statement of Smt. Anita, LR of the defendants no.1
42. As already pointed out, the defendant no.1 expired during the pendency of the the present suit and her LRs were brought on record vide order dated 16.03.2010. Smt. Anita, one of the LRs of the defendant no.1 sought permission to file additional written statement in terms of Shakuntala Devi v. Bimla Page No. 25/138 CS DJ No. 613224/2016 Order XXII rule 4 (2) of the Code of Civil Procedure, 1908 (CPC) which was allowed vide order dated 13.10.2020 and the additional written statement on her behalf was taken on record, while the present suit was at the stage of the plaintiff's evidence.
43. In the said written statement, the LR Anita Sharma supported the contentions as raised by the defendants no.1 & 2 in their written statement.
REPLICATION OF THE PLAINTIFF:
Replication to the combined written statement of the defendants no.1 and 2:
44. The plaintiff filed his replication, in which the contents of the written statement were denied and the version as stated in the plaint was reaffirmed as being true and correct.
Replication to the additional written statement of Smt. Anita, defendant no. 1 (c), LR of the defendant no.1 Shakuntala Devi v. Bimla Page No. 26/138 CS DJ No. 613224/2016
45. In the replication filed, the plaintiffs denied the averments in the written statement and affirmed the statements in the plaint to be true and correct. ISSUES FRAMED
46. Vide order dated 16.11.2007, the following issues were framed:
1. Whether plaintiff is the exclusive owner of the suit property? (OPP)
2. Whether the occupation of the defendant in the suit property was with permission of the husband of the plaintiff and they are now in illegal possession after that permission had been revoked? (OPP)
3. Whether plaintiff is entitled to the mesne profits, if so, at what rate and for which period? OPP
4. Whether plaintiff has no locus standie to file the suit? (OPD)
5. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? (OPD)
6.Whether defendant is living in the property in his own right as co-owner? (OPD)
7. Relief EVIDENCE LED THE PLAINTIFF:
47. Sh. Sushil Chander Sharma, the son and LR of the deceased plaintiff, examined himself as PW-1 and tendered his evidence by way of affidavit as Ex. P-1 on Shakuntala Devi v. Bimla Page No. 27/138 CS DJ No. 613224/2016 30.10.2009 in which the contents of the plaint were reiterated.
48. He relied on the following documents in support of his testimony:
a. Death certificate of the deceased plaintiff as Ex. PW-1/A. b. Amended memo of parties filed in the present suit reflecting the impleadment of the LRs of the deceased plaintiff as Ex. PW-1/D. c. Power of attorney dated 10.7.2009 executed by the other LRs of the deceased plaintiff in favour of the deponent as Ex. PW-1/E. d. Application under Order 22 rule 3 CPC to bring on record LRs of the deceased plaintiff as Ex. PW-1/C. d. Site plan of the property as Ex. PW-1/F. e. Sale deed with respect to the property executed in favour of Sh. Rajinder Pal Sharma by DLF in 1952 as Ex. PW-1/G. Shakuntala Devi v. Bimla Page No. 28/138 CS DJ No. 613224/2016 f. Relinquishment deeds executed in favour of the plaintiff as Ex. PW-1/I. g. Death certificate of Sh. Rajinder Pal Sharma as Ex. PW-1/H. h. Mutation letter dated 23.08.2005 issued by MCD mutating the property in the name of the plaintiff as Ex. PW-1/J. i. Show-cause notice dated 24.05.2006 issued by the MCD to the plaintiff as Ex. PW-1/K. j. Objections submitted by the plaintiff to the MCD dated 8.06.2006 as Ex. PW-1/L. k. Letter dated 14.07.2006 issued by the MCD rejecting the application of the defendant no.1 as Mark C. l. Letter of the plaintiff to MCD dated 10.07.2006 as Ex.
PW-1/8.
m. Copy of plaintiff's complaint to the police dated 30.06.2009 as Ex. PW-1/M. n. Copy of FIR no. 128/2009 as Mark D. o. Copy of order dated 22.04.2009 granting anticipatory Shakuntala Devi v. Bimla Page No. 29/138 CS DJ No. 613224/2016 bail to defendants no.1 and 2 and other relatives as Mark E. p. Copy of letter dated 14.06.2006 sent by sons of Late Sh. Jaswant Rai Sharma to MCD, objecting to the mutation as sought by the defendant no.1 and the family settlement deed dated 09.05.1987 as Ex. PW-1/N. q. Copy of the legal notice dated 22.1.2007 issued by the plaintiff to the defendants no.1 and 2 as Ex. PW-1/O. r. Copy of the postal receipts with respect to the said notice as Ex. PW-1/P and Ex. PW-1/Q. s. Postal UPC receipt as Ex. PW-1/R. t. Refusal of acceptance of legal notice sent by registered A/D post by the defendants no.1 and 2 as Ex. PW-1/S and Ex. PW-1/T. u. Photocopy of letter written by the defendant no.1 to PS. Punjabi Bagh as Mark F.
49. I must mention at this stage that the cross- examination of PW-1 by the counsel for the defendants Shakuntala Devi v. Bimla Page No. 30/138 CS DJ No. 613224/2016 was a marathon event, spanning almost five years, commencing on 30.10.2009 and culminating on 10.12.2003 conducted on thirteen occasions.
50. The cross-examination of PW-1 by the ld. Counsel for the defendant no.2 commenced on.30.10.2009 during which he was questioned with to the power of attorney executed by the other LRs of the deceased plaintiff in his favour and he deposed that the same was executed by his sister Anita Sharma and brother Jugal Sharma in each other's and their advocate's presence at his chamber and was also notarized on the same day, however they did not sign anywhere in the register of the notary public. He deposed that the power of attorney was notarized on 10.07.2009. He deposed that he was a graduate and had retired in the year 2006, from the Planning Commission, Govt. of India. He deposed that his grandfather had four sons, i.e. Sat Parkash, Rajinder Pal Sharma (his father), Jaswant Rai Sharma and Janak Raj Sharma. At first he Shakuntala Devi v. Bimla Page No. 31/138 CS DJ No. 613224/2016 stated that Sat Parkash was the eldest brother, then stated that his father Rajinder Pal Sharma was the eldest and thereafter again stated that Sat Parkash was the eldest brother. He deposed that the brothers were educated at Village Oel, District Una, Himachal Pradesh. He deposed that his grandfather owned agricultural land and the cost of raising the brothers was met partly by income from the agricultural land and partly from money sent by his father. He deposed that his father started earning in the year 1938 when he was 18 years old and prior to this, his grandmother Smt. Udhmi Devi was taking care of her children in the village. Thereafter, the further cross- examination of the witness was deferred.
51. On 14.07.2010, PW-1 was examined in chief further, in which he tendered addenda to the power of attorney (Ex. PW-1/E) as Ex. PW-1/U. During his cross- examination by the ld. Counsel for the defendant no.2, he deposed that the document Ex. PW-1/U was signed by Sh. Shakuntala Devi v. Bimla Page No. 32/138 CS DJ No. 613224/2016 Jugal Kishore and Mrs. Radha Sharma around 'March 10' at his advocate's chamber at which time Sh. Brahm Dutt was also present, who also signed the same. The document was then notarized on the same day. He denied the suggestion that they were not present as stated. He deposed that he retired from govt. job in the year 2006 and his father was also a government employee, who was working in 505 EME, Army Base Workshop, Delhi Cantt. He deposed that his father had joined in 1952 and retired in 1977 from the same department, and at the time of retirement his salary was Rs. 675, exclusive of house rent allowance, CCA, over time allowance, children's education allowance, ex-gratia for good service etc. He deposed that Sh. Janak Raj and Sh, Jaswant Rai were also in regular govt. service and the eldest brother Sh. Sat Prakash was a casual labour in a govt. department, but did not know their salaries. He stated that he did not know the date of joining the govt service by Jaswant Rai or that in 1943 he had joined Army Base Workshop at Delhi Cant, Shakuntala Devi v. Bimla Page No. 33/138 CS DJ No. 613224/2016 however admitted that prior to joining 505 ABW, he was in Punjab police. He stated that he did not know whether at the time of retirement the salary of Sh. Jaswant Rai was Rs. 905/-. He further deposed that he did not know what was the total value of the entire property in the year 2007 when the suit was filed or its circle rate, but stated that the property falls under category E. He deposed that the property measured 249 sq. yards and was located at Shivaji Park near to Madipur and Punjabi Bagh. He stated that he could neither admit nor deny whether the circle rate of the area was Rs. One lakh per sq. yards or that the total value of the property is Rs. 3 Crores and at the time of filing of the suit the value was Rs. 80 Lakhs. He further deposed that the plot was booked by his father in the year 1952 and did not know the total salary drawn by his father from 1942 to 1977. He deposed that his father was not doing any other job apart from govt service and stated voluntarily that his father was a matriculate and a labour law expert and used to give consultancy in the department. He stated Shakuntala Devi v. Bimla Page No. 34/138 CS DJ No. 613224/2016 that he did not have any documentary proof in the form of any certificate or diploma to this effect. He denied the suggestion that his father had drawn a total salary of Rs. 92,951/- from 1950 till 1977. He admitted that when the plot was purchased by his father, his grand mother was still alive and denied the suggestion that his grandfather had died at an early age. He deposed that he did not know whether at the time of his grand father's death, his grand mother was only 28 years old. He admitted that at the time of his grand father's death his grand mother had four sons and one daughter. He further deposed that he did not know whether his paternal aunt (bua) was born after the death of his grandfather. He stated that also did not know the age of his father at the time of grandfather's death. He denied the suggestion that at the time of his grandfather's death all his children were minors and volunteered to state that his father was a major and was studying in the village in class 10th. He depoed that his father Sh. Rajinder Pal Sharma had shifted to Delhi in 1942 and joined as 'Leading Hand'/ Shakuntala Devi v. Bimla Page No. 35/138 CS DJ No. 613224/2016 clerical supervisor in 505 army base workshop Delhi Cantt. He deposed that he did not know if his uncle Sh. Jaswant Rai had joined 505 army workshop in 1943. He stated that in 1942, his father was residing at Sarai Rohilla and did not know in which year his father got married or where. He further deposed that he did not know whether his uncle Sat Prakash had joined 505 army workshop in 1948, but admitted that he expired in 1959. He further deposed that he did not know whether his uncle Janak Raj had joined Indian army in 1948. Thereafter, the further cross-examination of the witness was deferred.
52. It seems that in the meanwhile, PW-1 filed an additional affidavit dated 24.01.2011 (attested on 25.1.2011), qua the written statement of Lr Anita Sharma, defendant no. 1(c), which was ultimately taken on record vide order dated 16.11.2011 and later tendered in evidence on 05.01.2012 as Ex. PW-1/A1.
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53. PW-1 was recalled for his further cross-examination on 04.02.2011, during which he stated that his mother had executed a will qua the suit property before her death, about which he was not aware of when she expired and had come to know about the same only 1.5 - 2 months earlier and stated that he was in possession of the said will and could produce the same if asked for by the Court. He stated that he was not present at the time of execution of the said will in the office of the Sub-Registrar and came to know about the same from his relative whose name he did not remember. He deposed that he knew who were the witnesses to the said will and the same had been drafted by their counsel Sh. Subhash Sharma, advocate. Further Sh. Braham Dutt (relative) and Smt. Asha Sharma (sister) were the witnesses to the said will. He admitted that he was the attorney of his sister in the present case and Sh. Subhash Sharma was also the counsel in the present case.. He deposed that he had been granted the right in the said will, i.e. right to execute the same, however had not filed any Shakuntala Devi v. Bimla Page No. 37/138 CS DJ No. 613224/2016 probate proceedings in respect to the same. He stated that the will was executed in the year 2008 and he had been given right with respect to the ground floor and roof right of second floor in the said will. The first floor had been given to the two sons of Sh. Jaswant Rai namely Sh. Manoj Kumar and Sh. Kamal Kishore. He deposed that Kamal Kishore had been residing on the first floor of the property since 1980 and prior to that he had been residing in Punjab. He deposed that Sh. Kamal Kishore had been born in East Delhi, but did not know the exact address. He further deposed that he along with all his brothers and sister were born at Sarai Rohilla. He stated that Jaswant Rai lived at Sarai Rohilla house from 1956 or 1957 onwards and shifted along with the deponent and his family to the property in question in 1963-1964. He further stated that Janak Raj never lived in Delhi. He stated that the defendant no.1, Smt. Bimla Devi did not shift with the deponent's family and joined later in 1964-1965. He deposed that his uncle Sh. Janak Raj shifted to Delhi from Shakuntala Devi v. Bimla Page No. 38/138 CS DJ No. 613224/2016 Punjab in the year 1971, and then again stated that he did not know as to when he shifted from Punjab to Delhi. (At this stage the Court made an observation that the deponent was arguing with the counsel for the defendant instead of answering the questions.) When again questioned as to when Janak Raj shifted from his village to Delhi, he stated that he did not know about the same. He further stated that he did not know where Janak Raj was posted at the time when he came from his village to Delhi. He stated the he did not know when Janak Raj joined the army, or that he was residing in Delhi when he joined the army. He deposed that he also did not whether Janak Raj joined 505 Army base or when Janak Raj got married. He stated that Janak Raj had gotten married to the defendant no.1, smt. Bimla Devi and that he had not attended the marriage. He deposed that Janak Raj had five children (four daughters and five sons), whose names were Santosh Sharma (daughter), Sudesh Sharma (daughter), Anita Sharma (daughter), Saroj Sharma (daughter) and one son Surinder Shakuntala Devi v. Bimla Page No. 39/138 CS DJ No. 613224/2016 Kumar Sharma. He denied the suggestion that Santosh Sharma and his own sister Asha Sharma had studied together in Government School at Sarai Rohilla in 1957- 1958. He deposed that he did not know where the children of Sh. Janak Raj were studying. He denied the suggestion that Sh. Janak Raj was residing at Sarai Rohilla in January, 1948 when he joined the army. He further deposed that his father had joined service in 1942 and did not know when Jaswant Rai joined the army or when he came to Delhi. He further deposed that he did not know when Sh. Satya Prakash came from his village and joined service in Delhi or where he resided once in Delhi. The witness further deposed that he did not know whether Satya Parkash joined 505 Army Base, Delhi Cantt in the year 1948. He denied that all four brothers including Sh. Rajinder Pal Sharma resided together in 1948 in the Sarai Rohilla house and stated that he did not know if his grandmother also came with her sons in the Sarai Rohilla house. He admitted that all the children of his uncle including himself and his Shakuntala Devi v. Bimla Page No. 40/138 CS DJ No. 613224/2016 siblings had got their education at Delhi. He deposed that Santosh Sharma, daughter of Janak Raj was studying in government school in Sarai Rohilla and the defendant no.2 got educated at Govt. school, Rajouri Garden. He stated that he had not seen his grandfather during his lifetime and denied the suggestion that after the death of Sh. Parmeshwari Dass, his grandmother had taken care of the entire family. Thereafter the further cross-examination of the witness was deferred.
54. PW-1 was recalled for his further cross-examination on 13.05.2011 during which he stated that his father Rajinder Pal Sharma was residing at Sarai Rohilla on rent in 1964 since 1942, which was a one room house and could not remember the property number. Mr. Jaswant Rai along with his family came to reside with Rajinder Pal Sharma in 1956-1957 and also got a job with 505 Army base, Delhi Cantt. He deposed that prior to the same Rajinder Pal Sharma was working as a constable with Shakuntala Devi v. Bimla Page No. 41/138 CS DJ No. 613224/2016 Punjab Police and retired from the army in late 1970s. He deposed that he could not state whether Jaswant Rai had joined the 505 Army base in 1943 itself as he came to their house in 1956-57. The witness denied the suggestion that in the year 1956-57 Mr. Jaswant Rai was not having any money and his father had allowed him to stay with him on compassionate ground. He then deposed that he did not know if prior to army, Jaswant Rai was a government employee. He further stated that it was correct that Rajinder Pal Sharma and Jaswant Rai shared a common kitchen at Sarai Rohilla. The witness then stated that he did not know if Janak Raj was working in 505 Army base from 1944 to 1948. He deposed that he also did not know if Janak Raj had married the defendant no.1 in 1946. He stated that Sat Prakash was a causal labour in a government department did not know if he was also employed in 505 Army base from April 1948 to June 1958. He deposed that Sat Prakash would occasionally stay with his father at Sarai Rohilla. He further deposed that he did Shakuntala Devi v. Bimla Page No. 42/138 CS DJ No. 613224/2016 not know the salary of his father in 1950 or if it was Rs.93/- per month or that of Jaswant Rai was Rs. 90/- per month or that Janak Raj was getting a higher salary. He stated that the defendant no.1 was the only child of her parents and her father was a priest and 'shareholder' in the temple of Mata Chintapuurni in H.P. He deposed that he did not know if the defendant no.1 inherited the property of his father after his death. He stated that when the plot of the property was bought, his father was aged 31 years. He deposed that his parents used to sent money to Udhmi Devi at her village in Himachal Pradesh, but did not know the amount or the mode of remittance. He further deposed that he did not know whether in January,1962 the salary of the plaintiff's father was Rs.263/-. He stated that ground floor of the property was constructed in the year 1962- 1964 after which his father and Jaswant Rai and his family shifted to the house. He denied the suggestion that in 1965- 66, the children of Jaswant Rai came from Sikandarabad and took admission in the school at Delhi. He also denied Shakuntala Devi v. Bimla Page No. 43/138 CS DJ No. 613224/2016 the suggestion that his sister Asha and Santosh, daughter of the defendant no.1 studied in the same school. He also stated that he did not know whether the salary of his father in 1966 - 1967 was Rs.280-290/-. He deposed that Jaswant Rai and his family were permitted to live in the house in 1964 as he was facing difficulty in traveling from East Delhi to Cantt. He further deposed that it was correct that his father had kept the children of defendant no.1 with him on compassionate ground in December 1964-1965. He also deposed that there was a litigation going on amongst the heirs of Sh. Jaswant Rai over his house in East Delhi. In response to the suggestion that it showed Jaswant Rai as a financially sound person he stated that he did not know how the same was purchased by Jaswant Rai. Thereafter the further cross-examination of the witness was deferred.
55. On 28.07.2011, the witness was again recalled for his further cross-examination, during which he produced the documents relating to Jaswant Rai's property in East Shakuntala Devi v. Bimla Page No. 44/138 CS DJ No. 613224/2016 Delhi. He further deposed that there was ancestral property in their village at Oel, Himachal Pradesh as his grandfather and his two other brothers held property jointly. He further deposed that there was no partition or family settlement which took place with respect to the said ancestral property, but everyone was having right to sell their own share. After denying at first, the witness admitted to having filed a civil suit for injunction titled as Manoj Kumar and Sushil Chand vs Sham Gopal & Ors, before the courts at Una District, which was later withdrawn on account of an amicable settlement. He stated that that the defendants were also having a share in the said ancestral property along with fifteen other families comprising of around 80 persons. He denied the suggestion that after withdrawing the said suit he illegally occupied a portion of the ancestral property. The witness was confronted with the photocopy of the said case as Ex. Mark X1, which was admitted. Thereafter, the further cross-examination of the witness was again deferred.
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56. The witness was recalled again on 1.08.2011 during which he deposed that in 1964, Rajinder Pal Sharma and Jaswant Rai Sharma were staying in the property along with their families. He further deposed that the second floor was constructed in 1975-1976 comprising of four rooms at a cost of Rs. 22,000 to 24,000. He stated that his father was an income tax assessee, but could not state the period form when he started paying income tax and till when. He deposed that the cost of construction was borne by his father Rajinder Pal Sharma and the deponent, his wife and brother Jugal Kishore and stated that since they were giving their salaries to Rajinder Pal Sharma the share of their contributions was not known. He deposed that the construction of the first floor was also done by his father and himself and some amount for which was withdrawn by his father from his GPF account. He stated that Janak Raj, husband of defendant no.1 came to Delhi in 1971 after his retirement from the army as Hawaldar, however was Shakuntala Devi v. Bimla Page No. 46/138 CS DJ No. 613224/2016 admitted in hospital as he was ill. He deposed that he did not know whether prior to the army, Janak Raj was in government service as well. He stated that after retirement Janak Raj was appointed as an ex-serviceman with BEL for about 3-4 years. He stated that he and his father had a good relationship with his uncle Janak Raj. The further cross-examination was again adjourned.
57. On 05.1.2012, the PW-1 tendered his additional evidence by way of affidavit as Ex. PW-1/A1 in which he reiterated the the property was the self acquired property of Rajinder Pal Sharma and not the joint property owned along with his brothers. He denied that the property was booked by his grand mother Late Smt. Udhmi Devi out of joint family funds and was not a joint family property. He deposed that the plot was booked by his father Sh. Rajinder Pal Sharma out of his own income as he was working in a supervisory capacity with a government department as mentioned in the sale deed itself. He stated Shakuntala Devi v. Bimla Page No. 47/138 CS DJ No. 613224/2016 that Sat Prakash was the eldest brother and Rajinder Pal Sharma was the next eldest, followed by Sh. Jaswant Rai and the youngest being Sh. Janak Raj Sharma. He stated that his father Sh. Rajinder Pal Sharma was neither the eldest, nor a karta and no joint Hindu family existed. He stated that the property was booked by his father on 30.12.1050 and was registered in his name on 31.12.1952 after settlement of all accounts with DLF. He denied that there was any family settlement on 09.05.1987 as per which the second floor was given to Janak Raj Sharma as his absolute property and the same was a forged and fabricated document. He further deposed that at the time of its alleged execution, the eldest brother Sh. Satpal Sharma had expired and any settlement ought to record the presence of the remaining three brothers, however it is only executed between Janak Raj Sharma and Rajinder Pal Sharma. Further, it states that the land was purchased the by the defendant no.1 in equal shares. He further deposed that he came to know about the alleged family settlement Shakuntala Devi v. Bimla Page No. 48/138 CS DJ No. 613224/2016 dated 09.05.1987 from the show-cause notice issued by the MCD. Further the defendants have also relied on one receipt, which is also forged and fabricated, which records the names of defendant no.1 and Jaswant Rai Sharma and appeared to be an agreement and not a receipt. It did not mention the name of Rajinder Pal Sharma and mentioned that the second floor will be occupied by the defendant no.1 and the first floor would be occupied by Jaswant Rai Sharma. Further, it records payment of Rs.35,000/- by defendant no.1 to Rajinder Pal Sharma towards construction of the second floor, which is against the claim of joint family property. He also deposed that in 13.06.2006 itself, the three sons of Jaswant Rai Sharma had given in writing to the MCD that the suit property belonged to Sh. Rajinder Pal Sharma. Further Rajinder Pal Sharma had raised the construction over a period of years. He deposed that in 1942 Rajinder Pal Sharma was working in a supervisory capacity in a central government office, while his other brothers had only studied upto middle class Shakuntala Devi v. Bimla Page No. 49/138 CS DJ No. 613224/2016 and worked in lower posts. On completing his matriculation in 1937, Rajinder Pal Sharma started work as a loading and unloading clerk in NWF, Samasata, now Pakistan. The deponent relied upon a post card of Rajinder Pal Sharma's address as Ex. PW-1/C. As he found the climate at Samasta to be hot, he learnt typewriting and shifted to a company in Ambala, M/s Sjudhia Dass Parma Nand and worked with it till 1942. Certificate of typewriting of Rajinder Pal Sharma was relied upon as Ex. PW-1/D. A testimonial letter issued by the company was relied upon as Ex. PW-1/E. He deposed that thereafter Rajinder Pal Sharma joined the 505 army base workshop at Delhi Cantt. as 'leading hand'. An appreciation letter was relied upon as Ex. PW-1/F. His designation was changed to 'clerical supervisor' and worked uptill 1977. Being a labour expert, Rajinder Pal Sharma was then engaged by a firm M/s Elofic Filter India Company, Faridabad in 1978 and worked with them for twenty years uptil 1998 earning perks and privileges. Further the other family members of Shakuntala Devi v. Bimla Page No. 50/138 CS DJ No. 613224/2016 Rajinder Pal Sharma being his sons, daughter in law, grand-daughter and grand son were also working and earning. He deposed that Rajinder Pal Sharma had also helped his brother Janak Raj in avoiding the punishment for financial fraud committed at the army base workshop. Further Janak Raj Sharma was stated to suffer from poor financial health and living in the suit property on compassionate grounds. It was stated that Rajinder Pal Sharma had retirement benefits of Rs.65,000/- and not Rs.28,000/- as claimed and his GPF balance was Rs.28,736/- on retirement and gratuity amount of Rs.16,698/-. His leave salary was stated to be Rs.8,096/- and commutation for 10 years was Rs.9,930/-. Rajinder Pal Sharma also got huge arrears under the 4th and 5th Financial Pay Commissions as well. Further PW-1 relied upon for GPF and six EPF statements of Rajinder Pal Sharma as Ex. PW-1/G to P, application dated 22.3.1950 of the GPF account as Ex. PW-1/Q, ESIC card as Ex. PW-1/R, Letter dated 16.12.1998 issued by 505 Army Base Workshop Shakuntala Devi v. Bimla Page No. 51/138 CS DJ No. 613224/2016 showing the revised pensions of Rajinder Pal Sharma as Ex. PW-1/S. PW-1 deposed that when the defendant no.1 came seeking shelter to Rajinder Pal Sharma in a pregnant state and the father of the defendant no.1 was stated to be a pauper. PW-1 deposed that Janak Raj Sharma served with the army from 1948 till 1971, during which period he was never posted at Delhi. He was stated to be an alcoholic who never cared for saving his money. He further deposed that all family members had only been permitted to live in the house on compassionate grounds by Rajinder Pal Sharma. It was further deposed that Rajinder Pal Sharma was working with the industrial establishment of the army in a supervisory capacity and also entitled to over time allowance and other ex-gratia amounts, which were more than the actual salary. PW-1 disputed the figure of Rs. 92,951/- as the total earning of Rajinder Pal Sharma and further deposed the price index at the time of 1960s should also be taken into account. The cost of maintaining a family and construction were both very low. PW-1 further Shakuntala Devi v. Bimla Page No. 52/138 CS DJ No. 613224/2016 deposed that the defendant no.2 worked at a travel agency company, where he faced a CBI inquiry for issuing false documents but was rescued by the owner and was later appointed at BEL as a BEL/Typist on compassionate grounds on the death of his father Janak Raj Sharma. It is stated that such appointment on compassionate grounds itself reveals the financial crunch facing his family. Further, at BEL as well, the defendant no.2 resigned owing to his malpractices. Thereafter the defendant no.2 is stated to have shifted from one job to another, having secured nothing in life for himself. PW-1 denied that an amount of Rs. 25,000/- or any other amount was ever paid by Janak Raj Sharma as claimed. PW-1 further deposed that defendant no.1 died a natural death and relied upon as letter by her to Gram Panchayat, Chintputi, HP as Ex. PW-1/R and Letter by the Block Development Officer, DistrictAmb, HP as Ex. PW-1/S.
58. PW-1 was then exhaustingly further cross-examined Shakuntala Devi v. Bimla Page No. 53/138 CS DJ No. 613224/2016 on another seven occasions on the above additional affidavit for almost two years commencing from 5.1.2012 till 10.12.2013.
59. On 05.01.2012, PW-1 deposed during his cross- examination that his father Rajinder Pal Sharma had matriculated in 1937 and learnt typing from 1937 till 1939. Further, he joined NWF Railways in 1937 and joined the private company at Ambala in 1939 and worked there till 1942. He reiterated that Rajinder Pal Sharma left his job at railways as the climate of Samasata, now Pakistan did not agree with his health. He deposed that his father was heading the Labour Bureau of the 505 army workshop and relied upon Ex. PW-1/F to show that his father had worked there. Thereafter the further cross-examination of PW-1 was deferred.
60. He was recalled for his further cross-examination on 05.03.2012, during which he deposed that Janak Raj Shakuntala Devi v. Bimla Page No. 54/138 CS DJ No. 613224/2016 Sharma was working in South India and one soldier called Jai Ram or Raja Ram brought the defendant no.1 to Rajinder Pal Sharma on her request at Delhi stating that she had been kicked out by her husband. PW-1 further deposed that his date of birth was 01.04.1946. He further deposed that in 1964 only the ground floor had been constructed comprising of three bedrooms with an non- operational toilet and at that time eleven persons were staying in the house. He denied the suggestion that Bimla Devi was not deserted but was sent on account of her pregnancy as elder members of the family were staying at Delhi. He deposed that the other children of Janak Raj Sharma were sent thereafter through an army Hawaldar. The defendant no.1 and her children were accommodated in a temporary shed constructed on the roof of the ground floor. At that time his grandmother was also alive and she was permanently residing at Village Oel, Himachal Pradesh. He further deposed that Rajinder Pal Sharma was an income tax payee and maintained bank accounts in Shakuntala Devi v. Bimla Page No. 55/138 CS DJ No. 613224/2016 Punjab National Bank and UCO Bank both at Punjabi Bagh Branch, but did not have the account numbers. His cross-examination was then deferred.
61. On 06.03.2012, PW-1 deposed that he had no documents with respect to his father's bank accounts or know till which date they were operational. The witness was confronted with documents Ex. PW-1/R and Ex. PW-1/D and he admitted they were in the name of Rajinder Pal Sharma and denied the suggestion that 'Rajinder Pal' and 'Rajinder Paul' were not the same person. He deposed that in 1971-1972 his father's financial condition was excellent and he denied the suggestion that he used to borrow money. He denied the suggestion that an amount of Rs.2,000/- withdrawn by Rajinder Pal Sharma from his GPF account was not utilized towards the construction of the house and was withdrawn as he was facing financial problems. He further deposed that he did not know the salary of his father withdrew money from his Shakuntala Devi v. Bimla Page No. 56/138 CS DJ No. 613224/2016 GPF account in 1971-72 and then again in 1974-75 for the furnishing of the first floor. He deposed that he did not know the salary of his father during this period as well. He denied the suggestion that the amount of Rs.4,000/- withdrawn by Rajinder Pal Sharma from his GPF account was not utilized towards furnishing of the first floor. He further deposed that them marriage of Smt. Santosh Sharma, daughter of Janak Raj Sharma was solemnized by his father, who was enjoying good financial condition and the maximum amount was spent by him and denied the suggestion that parents of Santosh Sharma had spent money on the marriage. He further deposed that on Santosh Sharma securing a job, she along with the defendants were asked to vacate the suit property. He further denied the suggestion that Sudesh Sharma, other daughter of defendant no.1 was a government employee entitled to official accommodation which was refused as they were co-sharers in the property. He deposed that Rajinder Pal Sharma had asked his brother Jaswant Rai Shakuntala Devi v. Bimla Page No. 57/138 CS DJ No. 613224/2016 also to vacate as he was having his own property in East Delhi. The further cross-examination of the witness was then deferred.
62. During his cross-examination dated 23.05.2012, PW-1 was confronted with a document bearing no.25186 dated 17.05.1950 as per which described Rajinder Pal Sharma as a civilian clerk on temporary basis, to which he stated that his father Rajinder Pal Sharma had been appointed as a clerical supervisor in 1942, however a dispute arose and as per a Supreme Court direction, some officers were reverted and again reinstated and the document may be pertaining to that period. He deposed that his father Rajinder Pal Sharma had repeated asked his brother Jaswant Rai to vacate the first floor of the property from 1971 till 1979 to vacate the suit property. He stated no legal notice to vacate was given by his father to Jaswant Rai to vacate in view of his difficulty in getting to office at Delhi Cantt. He denied the suggestion that Bimla Devi Shakuntala Devi v. Bimla Page No. 58/138 CS DJ No. 613224/2016 ever occupied the ground floor. He deposed that the defendant no.1 was asked to vacate the property in 1974, 1975,1979 and then in 1982 when the defendant no.2 purchased a plot from Haryana Urban Development Authority (HUDA). He stated that no notice of eviction was given as she had promised to vacate the property. He stated that Santosh Sharma purchased a plot around 1973 or 1974. He admitted that prior to the filing of the present suit, no other legal action had been taken against the defendant no.1. He further stated that the documents with respect to payment of benefits and overtime of his father Rajinder Pal Sharma had been destroyed by the department or otherwise were not available, which was intimated to him after the filing of the present case, and the letter had been filed by the defendants. He further stated that completion certificate with respect to the first floor had been given by the MCD, which had been placed on record. He admitted that some portion of the first floor had been given on rent to one Mr. Anand and his family for some Shakuntala Devi v. Bimla Page No. 59/138 CS DJ No. 613224/2016 time, when he was constructing his house, but he could not remember the exact year. He stated that the portion was lying spare and hence was given on rent. He stated that during this period 8-9 persons stayed on the ground floor. He denied the suggestion that Jaswant Rai shifted to the first floor of the property as a co-owner and said the same was done as per the choice of his father. He denied the suggestion that the suit property was purchased from the joint funds of all the brothers and was being occupied by them as co-owners. He stated it was correct that his father Rajinder Pal Sharma had given a loan of Rs. 1 lakh to the defendant no.1 and an amount of Rs. 20,000 to purchase a plot in Bahadurgarh, which was purchased in the name of the defendant no.2 in 1982. He stated that it was further correct that in 1982 or 1983 an amount of Rs. 40,000/- was given for the marriage of the defendant no.2 and a further amount of Rs. 40,000/- was given for construction of the house at Bahadurgarh. He stated that his father could arrange for the amount of Rs. 1 lakh as he was working in Shakuntala Devi v. Bimla Page No. 60/138 CS DJ No. 613224/2016 a multinational company and the deponent and his wife were also employed. Further, his brother was also working with a reputed company in Faridabad. He stated that he could not tell of the amount was withdrawn from a Bank, but stated that the plaintiff had given an amount of Rs.20,000/- in front of him. He stated that he could not state whether it was reflected in his father's income tax return and volunteered to state that family loans were not shown in income tax returns. He stated that he did not know whether the said amount had been returned or not. The further cross-examination of PW-1 was again deferred.
63. During his cross-examination dated 02.02.2013, he deposed that there were three electricity meters and water connections in the house, two in the name of Rajinder Pal Sharma and one in the name of the defendant no.1, which had been taken on basis of forged and fabricated documents in connivance with the department. Further, a Shakuntala Devi v. Bimla Page No. 61/138 CS DJ No. 613224/2016 shop in the name of Jugal Kishore also had a separate electricity connection. He deposed that the electricity connected had been taken by the defendant no.1 on the basis of a 'no objection certificate' allegedly issued by Rajinder Pal Sharma, which had been found to be forged by the Forensic Lab of Hyderabad. Further, a charge-sheet had also been filed against the defendant no.1 and others. He deposed that he first came to know that the document had been forged in 1987 when the Delhi Electrical Supply Undertaking (DESU) officials informed him about the same, however due to intervention of relatives, no complaint was filed. He deposed that the defendants and their family were residing in a shed on the roof of the ground floor since 1956 and when the first floor was constructed by Rajinder Pal Sharma, a small portion was left for them on their request that they would be shifting to their house soon. Later in 1986-1987 when additions were made to the property and the second floor was constructed, they were given a room on compassionate grounds. He Shakuntala Devi v. Bimla Page No. 62/138 CS DJ No. 613224/2016 denied the suggestion that the second floor was constructed by the family of Janak Raj Sharma. He also denied the suggestion that Rs.35,000/- was paid by the family of Janak Raj Sharma to Rajinder Pal Sharma as the share of the cost of the construction of the second floor. He deposed that a sum of Rs.35,000/- was paid by the defendant to Rajinder Pal Sharma through cheque bearing no. 870764 dated 27.02.1987, drawn on PNB, Delhi as part payment of loan Rs.1 Lakh taken from him in 1982 for the marriage of defendant no.2 and purchase of plot. A document Ex. PW-1/D1 dated 27.02.1987 was stated to be a forged and fabricated document, against which a complaint had been filed. He denied the suggestion that as per the document Rs.35,000/- had been paid in lieu of share for the second floor. He admitted that as per the will of his mother, the first floor had gone to the sons of Sh. Jaswant Rai, namely Manoj Kumar and Kamal Kishore. He deposed that the suit property had been mutated in favour of the plaintiff at which time no show cause notice Shakuntala Devi v. Bimla Page No. 63/138 CS DJ No. 613224/2016 was received from the MCD. He was then confronted with show-cause notice dated 24.05.2006 to which he stated that it was issued on the basis of the application for mutation of the second floor of the property by the defendant no.1. The same was also rejected on 14.07.2006 by the MCD who asked the defendant no.1 to produce a succession certificate. He denied the suggestion that the show-cause notice dated 24.05.2006 was issued at the time of mutation of the property in the name of the plaintiff. He further deposed that the house tax of the property was also paid for by Rajinder Pal Sharma till 2001 and thereafter by the plaintiff and now by himself. He denied that the defendants paid their share of the house tax. He stated that it was correct that after purchase of the plot, construction was started only after 7-8 years, around 1961. He denied the suggestion that the plot was purchased and constructed upon out of HUF funds. He stated that there was no HUF in the family and it was the self acquired property of Rajinder Pal Sharma. He stated that the first floor was Shakuntala Devi v. Bimla Page No. 64/138 CS DJ No. 613224/2016 constructed around 1974-1975 and denied the suggestion that the retirement benefits of Janak Raj were utilized in the same and deposed that the defendant had not placed any proof on record to show that the money had been spent.. He stated that he had placed on records GPF fund statement of Rajinder Pal Sharma to show that his father had spent money from his own means on the construction. Thereafter the cross-examination was deferred.
64. On 03.05.2013, PW1 deposed that he was aware that income tax department issued notice to his father regarding investment income/expenditure in the year 1986 and further that, the income tax department was appropriately replied as per income tax law and the case was closed. Since document Mark PW-1/D1 shown to the witness dated 07.05.1986 written by Rajinder Pal Sharma to the Income Tax Department was a photocopy and had the signatures like that of his father, the witness stated that in the absence of original signature of his father, he could not Shakuntala Devi v. Bimla Page No. 65/138 CS DJ No. 613224/2016 confirm the said document. He further deposed that since the loan of Rs.1,00,000/- paid to Smt. Bimla Devi (defendant no.1) by his father in 1982 was given on three different occasions and a part of which might have been returned, therefore, the same was not shown in the ITR. He stated that he was not aware that any loan/transaction above Rs.20,000/- must the shown in the ITR. He was asked that vide a letter dated 07.05.1986 written to Income Tax Department by his father stating that he had received Rs. 47071/- after his retirement in 1997 and except pension of Rs.560/- p.m, then from where his father had paid Rs.1,00,000/- to the defendant no.1. To which, he replied that he had already explained the financial status of his father during his earlier cross-examination where he had stated everything in detail about the excellent/financial status of his father and his family members. He stated that he could not produce any document regarding Rs.1,00,000/-. He denied the suggestions that his father had not paid Rs.1,00,000/- as a loan to the defendant no.1 Shakuntala Devi v. Bimla Page No. 66/138 CS DJ No. 613224/2016 and that his father was not having Rs.1,00,000/- with him so there was no question of giving the loan. He was asked on what basis he was saying that the defendant no.1 had returned some part of the said loan. The witness replied that the defendants no.1 & 2 stated in their written statement that they had paid Rs.35,000/- on one occasion and Rs.25,000/- on second occasion and that they had attached a receipt of Rs.35,000/- which was a forged receipt and he could presume that it might be a part of that payment but they had not attached any receipt of Rs.25,000/- which they have allegedly paid. He further deposed that his son was working in a PSU of Ministry of Commerce and Industry but he had not filed any document nor could produce any document regarding the same. He was further asked that since his father kept defendant no.1 Bimla Devi on compensatory ground then what was the need to pay Rs.1,00,000/- to Bimla Devi. To which, the witness replied that his father was pressing defendants no.1 and 2 to shift to their own accommodation for which Shakuntala Devi v. Bimla Page No. 67/138 CS DJ No. 613224/2016 defendant no.2 had purchased a plot no.868 in sector-6, from Huda in Bahadurgarh for which an amount of Rs.20,000/- was given to the defendant no.1 and further, another amount of Rs.40,000/- was given for the construction on that plot in Bahadurgarh so that they can vacate their premises and thirdly when there was a marriage of defendant no.2, so, he was given another Rs.40,000/-and also go to his house in Bahadurgarh. He was further asked as to how the amounts of Rs.20,000/-, Rs.40,000/- and Rs.40,000/- were given, to which, he replied that an amount of Rs.20,000/- was given in cash in his presence and for the rest of the amount paid, he had no knowledge as to how same was paid. He further deposed that as on date, his brother was not working in MNC but earlier he was and at present, he was running a shop. He admitted that Manoj Kumar s/o Jaswant Rai had locked the two rooms and a kitchen on the first floor on the suit property in 1985 and shifted to his own flat in Vikaspuri. On being asked whether the above-said accommodation Shakuntala Devi v. Bimla Page No. 68/138 CS DJ No. 613224/2016 was still locked, he answered that out of two rooms, the lock on one room had been broken by Ashok Kumar brother of Manoj Kumar and Sh. Rakesh Kumar son-in- law of Sh. Ashok Kumar and further stated voluntarily that since the daughter of Ashok Kumar was to deliver a child, he pleaded Manoj Kumar that he had no space to keep her with him and sought some time but he had not done till date. No complaint was stated to have been filed till date. He was further asked that in the year 1985 Manoj Kumar s/o Sh. Jaswant Rai locked his own share in the suit property as he was having share in the suit property, what he had to say about it. He deposed that Jaswant Rai had three sons namely Manoj Kumar, Ashok Kumar and kamal Kishore and all these brothers had given in writing to the different Government agencies that the suit property belonged to Sh. Rajinder Pal Sharma and after his death, it had been inherited to his wife Smt. Shakuntala Devi and that a letter to this effect was given to assistant assessor and collecting, MCD Ashok Nagar on 14.08.2006. He Shakuntala Devi v. Bimla Page No. 69/138 CS DJ No. 613224/2016 denied that Ashok Kumar had submitted a letter in MCD that his signature had been taken fraudulently in the said letter by his brother. He stated further that that letter was got signed by him from all the three brothers and a copy of that was also given to all the three brothers separately for their record. He deposed that he was not aware of any such letter written to the MCD or any letter dated 12.05.2008 written to Assistant Collector, MCD. He further deposed that he or his father had not taken any completion certificate of the second floor since there were two illegal rooms constructed. He further stated voluntarily that he and his father got knowledge about family settlement and NOC in 1998 when electricity and water connection was installed in the suit property, upon receiving a notice from MCD with which a forged copy of family settlement deed was enclosed for the comments of Smt. Shakuntala Devi. He denied the suggestions that the defendant no.2 was working with Jet Airways as Sr. Manager but he stated voluntarily that he was working in some travel agency and Shakuntala Devi v. Bimla Page No. 70/138 CS DJ No. 613224/2016 that the defendants had any share in the suit property being the property purchased from the HUF funds.
65. On 10.12.2013, PW-1 was re-called for his further cross-examination and deposed that he was born on 01.04.1946 at Delhi and his grandfather was not alive at that time and did not know when he expired. He stated that his parents got married in their village at Oel, Himachal Pradesh. He deposed that Satprakash used to work as a casual labour and would occasionally visit Delhi and then started attending to agricultural work in their village. He deposed that their ancestral property in the village belonged to his great great grandfather and the same was now standing in the name of around 90 persons, which had not been partitioned. He further stated that the defendant no.2 had now filed an application for partition for his share at the Civil Court, Tehsil Amb, District Una, Himachal Pradesh for partition of his share. He stated that during his lifetime, Rajinder Pal Sharma did not file any case for Shakuntala Devi v. Bimla Page No. 71/138 CS DJ No. 613224/2016 partition of the village property, however others had filed but could not pursue. He also admitted that Jaswant Rai within his lifetime had not filed any suit against the defendants and the present suit had been filed after 6.5 years. He deposed that he could not state when Sat Prakash joined government service and that he shifted to the village in 1958 - 1959. He denied the suggestion that at the time of the death of Rajinder Pal Sharma, Sat Prakash was working with He denied the suggestion that Janak Raj was present in Delhi when Rajinder Pal Sharma purchased the plot in 1950 and stated that he never resided in Delhi till his retirement in 1971. He further denied the suggestion that his grandmother Udhmi Devi also resided in the property till her death or that there was joint family. He stated that by December 1964, only Jaswant Rai and his family had shifted to the property and the defendant no.1 came in 1965. He also denied the suggestion that after marriage, the defendant no.1 resided in the property, till she was taken to Bangalore by her husband and stated that Shakuntala Devi v. Bimla Page No. 72/138 CS DJ No. 613224/2016 the defendant no.1 resided with her mother in law, Udhmi Devi in the village. He also denied that Janak Raj used to live at Delhi during his vacations in the army. He also affirmed as correct that his father Rajinder Pal Sharma had given a loan of Rs. 1 lakh to the defendant no.1 and stated that no document was signed for this purpose. He also affirmed as correct that Rajinder Pal Sharma had inducted the defendant no.1 and her five children on compassionate grounds since 1964. He also affirmed as correct that Rajinder Pal Sharma had kept Jaswant Rai Sharma and his family in the property on compassionate grounds as well. He also affirmed as correct that Rajinder Pal Sharma also provided food and education to their families and also got the children of defendant no.1 married. He denied that his father was a Karta and stated that there was no joint family. He deposed that Jaswant Rai retired from 505 army base workshop in 1979 but did not know when he had joined the same. He denied the suggestion that Janak Raj had worked in Bharat Heavy Electrical Limited (BHEL) Shakuntala Devi v. Bimla Page No. 73/138 CS DJ No. 613224/2016 and stated that he did not know if he died at the age of 57. He denied that the three sons of Janak Raj were in government service. He admitted that the three daughters of the defendant no.1 were in government service. He stated that he did not know if defendant no.q was getting two pensions of her husband from army as well as BHEL. He deposed that initially all the children of defendant no.1 were dependent on his father and thereafter became independent. He deposed that the cost of the plot was Rs. 1756, which was paid in four installments, he deposed that he had no record regarding the construction of the house. He deposed that Janak Raj came to Delhi in 1971. He stated that in 1950 Rajinder Pal Sharma was appointed as clerical supervisor in 505 army base workshop, but did not know about his salary. He again reiterated that the defendant no.1 came to Delhi in an advanced state of pregnancy, along with her minor daughter as she had been deserted by Janak Raj Sharma. He deposed that later the other children were also deserted by Janak Raj Sharma and Shakuntala Devi v. Bimla Page No. 74/138 CS DJ No. 613224/2016 were brought to Delhi by a colleague who was proceeding on leave to Punjab. He denied the suggestion that Janak Raj Sharma had been posted to a non family station and on such account his family came to Delhi. He also affirmed that his mother had withdrawn Rs. 20,000/- to purchase a plot for defendant no.2 at Bahadurgarh and stated that the defendant no.1 had taken a loan of Rs. 1 lakh from his father Rajinder Pal Sharma, out of which Rs. 20,000/- was for purchase of plot by the defendant no.2. The witness was also cross-examined on questions which had already been asked earlier and hence, the same is not being repeated here.
66. On 06.09.2013, Head Constable Sh. Ram Tek, No. 428/W, PS Punjabi Bagh, New Delhi was summoned as witness and examined. It is pertinent to mention that inadvertently, the son of Jaswant Rai, i.e. Manoj Kumar Sharma has also been examined as PW-2 and hence the present witness is being referred to as Ex. PW-2A. The Shakuntala Devi v. Bimla Page No. 75/138 CS DJ No. 613224/2016 witness brought the summoned record, i.e. FIR no. 128/2009 and also DD entry no. 10A dated 30.06.2006, the copies of which were exhibited as Ex. PW-2/A and Ex. PW2/B. During his cross-examination by the counsel for the defendant no.2, he deposed that the number of investigating officers who had investigated the case was mentioned in Ex. PW2/D2 and he did not have any personal knowledge about the case apart from the documents brought by him.
67. Sh. Sushil Dabas, LDC, Assessment and Collection Department, MCD (South), Delhi was summoned as PW-3 on 06.09.2013 who brought the summoned record i.e. the complete file pertaining to the property in question. He stated that as per the MCD records, the whole of the suit property, i.e. H-72, Shivaji Park, New Delhi - 26 had been mutated in the name of Smt. Shakuntla Devi vide MCD letter dated 23.08.2005, which was already exhibited Ex. PW-1/J. He deposed that the defendant no.1 had applied to Shakuntala Devi v. Bimla Page No. 76/138 CS DJ No. 613224/2016 the MCD for mutation of the property vide letter dated 25.04.2006 and produced on record the same as Ex. PW-3/1 (OSR) along with photocopy of a receipt and family settlement deed Mark A and Mark B. He stated that on the basis of the said letter by the defendant no.1, MCD had issued a show-cause notice dated 24.05.2006 to the plaintiff, Ex. PW-1/K, who filed a reply which was received on 09.06.2006, Ex. PW-1/L. He also stated that the three sons of Jaswant Rai Sharma, i.e. Manoj Kumar Sharma, Ashok Kumar Sharma and Kamal Kishore also wrote a letter dated 14.06.2006 to the MCD stating that they had no objection if the suit property was mutated in the name of the plaintiff, Ex. PW-1/L. He further stated that on 14.07.2006, the MCD rejected the application of the defendant no.1 for mutation of the suit property in her name vide Ex. PW-3/2 (OSR).
68. During his cross-examination by the ld. Counsel for the defendant no.2, he stated that Ashok Kumar had Shakuntala Devi v. Bimla Page No. 77/138 CS DJ No. 613224/2016 written a letter to MCD, Ex. PW-3/D2. He stated that he was not aware of any action taken by the department on this letter. He also admitted that defendant no.1 had also written a letter dated 10.05.2006 for the modification of the mutation order of the suit property, Ex. PW-3/D2A (OSR) and stated that he did not know if any action had been taken on the same. He stated that he did not have any personal knowledge. No cross-examination of the witness was conducted by the counsel for Lr no. 1 c Smt. Anita Sharma, despite opportunity given. The witness was thereafter discharged.
69. The son of Jaswant Rai, i.e. Manoj Kumar Sharma was also examined as PW-2 who deposed through his evidence by way of affidavit, Ex. PW2/X pm 05.12.2014, in which he stated that he had been living in the property since May, 1964 on compassionate grounds along with his three brothers on the first floor, without payment of any rent. He deposed that Sh. Rajinder Pal Sharma was the Shakuntala Devi v. Bimla Page No. 78/138 CS DJ No. 613224/2016 owner of the suit property and after his death on 4.06.2001, his wife/ plaintiff Shakuntala Devi became the sole owner on account of relinquishment deeds executed by her children. He stated that his father was first working in the Punjab police and thereafter joined 505 army workshop at Delhi Cantt. and started staying at Shahdra. He deposed that on account of difficulty in commuting to work, he requested his brother Rajinder Pal Sharma to permit him to stay with him at Sarai Rohilla so that it would be easier to travel to office and accordingly from 1956-57 they started residing with Rajinder Pal Sharma at Sarai Rohilla. He deposed that his father purchased his own separate house at Shahdra, which was sold and another house was purchased from DDA at Bhatnagar, Shahdra which was given on rent. He deposed that they started living with Rajinder Pal Sharma, except his younger brother Ashok who is stated to have been engaged in criminal activities, who was ultimately allowed to stay from 1982 on the promise of good behavior. He deposed that sometime Shakuntala Devi v. Bimla Page No. 79/138 CS DJ No. 613224/2016 around 1965 the defendant no.1 along with her one daughter came to Delhi seeking shelter, having been deserted by her husband Janak Raj Sharma who at that time was serving in Secunderabad. She was inducted into the property on compassionate grounds, which she remained in till her death on 22.12.2009 and at present the defendant no.2 was staying with his family, which was lying locked for the last five years. He deposed that he had seen the show-cause notice dated 24.05.2006 along with a photocopy of the alleged family settlement deed dated 09.05.1987 and stated that the entire property was owned by Smt. Shkuntla Devi. He stated that he and his two brothers Ashok Kumar Sharma and Kamal Kishore Sharma had written a letter dated 14.06.2006 to the Assistant Assessor and Collector (West), MCD, Ashok Nagar, New Delhi, a carbon copy of which, duly received by MCD was relied upon as Ex. PW-1/N, which bore his signatures at point A' and those of his two brothers at points 'B' and 'C' and he identified the signatures of his Shakuntala Devi v. Bimla Page No. 80/138 CS DJ No. 613224/2016 brothers. He deposed that there was no such family settlement deed between Rajinder Pal Sharma and Late Smt. Bimla Devi as at that time his father Jaswant Rai Sharma was also living in the property. The said family settlement deed was stated to be fake, forged and a manufactured document by the defendant no.2 and his wife along with Santosh Sharma, her husband and one advocate J. C. Tyagi. He deposed that he recognized the signatures of Sh. Rajinder Pal Sharma, having seen him sign many times and stated that the signatures on the said document were forged. He deposed that the receipt relied upon by the defendants was also a forged and fabricated document. He deposed that prior to 1971, Janak Raj Sharma never stayed in Delhi with any of his brothers. He deposed that there was never any Hindu Undivided Family in existence and there was no question of the suit property being HUF property as alleged. He also deposed that the suit property had been constructed only by Sh. Rajinder Pal Sharma out of his own funds and the plot had also been purchased by Shakuntala Devi v. Bimla Page No. 81/138 CS DJ No. 613224/2016 him from DLF from his own funds. He deposed that there had been no contribution by any of the brothers, who stayed in the property on compassionate grounds. On the death of Rajinder Pal Sharma, his wife, the plaintiff became the sole owner of the property.
70. PW-2 was cross-examined on 17.12.2014 during which he stated that he used to stay at both the addresses i.e. AG-1, 75A, Vikas Puri and H-72, Shivaji Park, New Delhi and used to go to the Vikas Puri address sometime since 1987-88. He stated that the Vikas Puri house was in his name and he had given it to his son. He got the possession of the house in the year 1995-1996 and took a loan from the Central Government for its purchase. He stated that the house no. H-72, Shivaji Park belonged to his grand uncle (taya ji) and he stayed there on compassionate grounds. He deposed that he did not have any right in the Shivaji Park property and was his father Jaswant Rai had also been allowed to live in the property since 1964 on Shakuntala Devi v. Bimla Page No. 82/138 CS DJ No. 613224/2016 compassionate grounds. He deposed that he had not seen any will executed by the deceased plaintiff bequeathing half of the suit property in his name. Thereafter, the further cross-examination of the witness was deferred.
71. On 18.02.2016, PW-2 was further cross-examined, during which he affirmed that Shakuntla Devi had executed a will dated 07.10.2008 in respect of the suit property, which fact came to his notice during the present proceedings during some other suit titled as 'Shakuntla Devi vs Ashok Kumar', which was pending adjudication at Tis Hazari Courts. He deposed that he also became a party to the said suit on the basis of t he will dated 07.10.2010. He stated that under the said will, he was given the first floor of the said property. He stated that he was residing at Vikas Puri, as well as Shivaji Park. He deposed that he started residing at the Shivaji Park property since 1964 on compassionate basis. A copy of the letter dated 14.06.2006 was put to the witness and he affirmed that he along with Shakuntala Devi v. Bimla Page No. 83/138 CS DJ No. 613224/2016 his brothers Ashok Kumar Sharma and Kamal Kishore Sharma had signed the same, which was then exhibited as Ex. PW-2/D2/2. He denied the suggestion that it was got signed from his brother Ashok Kumar Sharma under misrepresentation. He stated that his uncle Rajinder Pal Sharma had got the letter signed from them. He also stated that he had seen letter dated 09.05.2008 written by Ashok Kumar to the Assistant Assessor and Collector, West, MCD, Delhi in respect of cancellation, which was marked as P-2. The further cross-examination of the witness was deferred.
72. On 18.02.2016, Sh. Kamalkant, Ahlmad in the Court of the Ld. ADJ-03, East, Karkardooma Courts brought the summoned record, i.e. photocopy of the affidavit of Sh. Manoj Kumar, Ex. PW-5/D1.
73. On 19.02.2016, PW-2 was recalled for his further cross-examination and stated that he signed the letter Ex. Shakuntala Devi v. Bimla Page No. 84/138 CS DJ No. 613224/2016 PW-2/D/1 after reading its contents and voluntarily stated that his brothers had read its contents as well. He deposed that at the time when the plaintiff moved application before MCD for mutation, all persons were living in the property as permissive users. He further deposed that the defendant no.2 had locked the second floor of the property since the last six years and nobody knew where he was residing. He volunteered to state that the defendant no.2 had not given his address even in the criminal case pending against him. He further stated that the plaintiff applied for mutation in the year 2005 and the defendant no.2 was in possession of the second floor of the said property at that time as a permissive user. He denied the suggestion that the defendants had been staying in the second floor as owner of the same. He also denied the suggestion that the property H-72, Shivaji Park, New Delhi was purchased from the finds of the Hindu Joint Family. He deposed that out of the four brothers, the eldest was Sat Prakash Sharma, then Sh. Rajinder Pal Sharma, Sh. Shakuntala Devi v. Bimla Page No. 85/138 CS DJ No. 613224/2016 Jaswant Rai Sharma and Sh. Janak Raj Sharma. He stated that Sat Prakash Sharma was working as a casual labour in Delhi and all the other brothers were in regular job. He denied the suggestion that Sat Prakash Sharma was also in government job. The witness was then confronted with a document dated 3.10.2008, issued by Delhi Cantt HQ and it was put to him that in the said document, Sat Prakash Sharma had been shown as casual labour, to which the witness replied that he had already stated that Sat Prakash was doing business in Delhi too. He further deposed that his grandfather had already expired before he was born and had only seen his grand mother and their native village was Oel, Tehsil Amb, District Una, Himachal Pradesh. He stated that his grandfather had joint land in the said village and volunteered to state that as on date there were 110-112 claimants in the said land. He denied the suggestion that his grandmother used to send money for the educational expenses of his father and other brothers. He deposed that he did not know as to who financed the study of his father Shakuntala Devi v. Bimla Page No. 86/138 CS DJ No. 613224/2016 and other brothers when they lived in the village. He volunteered to state that except Rajinder Pal Sharma, no other brother could even pass his matric. He admitted that Sh. Ashok Kumar had sent a letter dated 09.05.2008 to him, which is Mark P-4, to which he did not send any reply. He deposed that Ashok Kumar had been living on the first floor of the property in question after breaking open the lock placed on the door by him. He stated that at first he did not file any complaint with the police, but when he was threatened with dire consequences by Ashok Kumar, he lodged a police complaint. He further stated that there was no separate water connection with respect to the second floor, however a separate electricity connection had been taken on the basis of forged documents, but did not remember in whose name the electricity connection for the second floor stood. He deposed that it may be in the name of the defendant no.1, however he did not know. He stated that it was not in his knowledge whether initially there was a separate water connection with respect to the Shakuntala Devi v. Bimla Page No. 87/138 CS DJ No. 613224/2016 second floor of the above-mentioned property. He stated that the electricity and water meters for the whole building had been installed on the ground floor. He stated that before shifting to the property, his father and his family were living in some property at Sarai Rohilla. He deposed that his father was in government job when he shifted to the property in question. He deposed that he had put locks on two rooms on the first floor, and volunteered to state that he shifted to Vikas Puri in 1987 on account of his son's difficulty in securing an admission to any school in the vicinity, however he was residing on the first floor of the property with his parents. He stated that when he shifted to Vikas Puri, his parents were residing on the first floor of the property on compassionate grounds. He stated that he had locked two rooms as his valuable goods were lying there. He stated that there were five rooms on the first floor, out of which two rooms were in his possession. His parents were occupying one room and the remaining two rooms were occupied by his brothers Ashok Kumar Shakuntala Devi v. Bimla Page No. 88/138 CS DJ No. 613224/2016 and Kamal Kishore. Thereafter, the further cross- examination of the witness was deferred.
74. PW-2 was recalled for his cross-examination on 18.04.2016, during which he stated that he did not know when his father left the services of Punjab police and did not know in which year his father shifted to Delhi or joined the 505 army base workshop, as he was born only in 1948. He further deposed that he did not know during which period his father had been staying in Shahdra and volunteered to state that his father shifted in 1956. He deposed that his father was the owner of the property in Shahdra, but did not know when it was purchased. He further deposed that his younger brother Ashok Kumar was involved in criminal activities and could also place on record the FIR registered against him if required. He denied the suggestions that he had falsely stated with respect to his brother Ashok Kumar or that Rajinder Pal Sharma had allowed him to stay in the property on the Shakuntala Devi v. Bimla Page No. 89/138 CS DJ No. 613224/2016 assurance of the deponent. He denied the suggestion that Ashok Kumar was residing in the property as a co-owner. Thereafter the further cross-examination of the witness was deferred.
75. PW-2 was recalled for his further cross-examination on 01.06.2016 during which he affirmed that Janak Raj Sharma used to serve in the Indian army during 1965 at Secunderabad and did not remember the name of the daughter who came along with Bimla Devi in 1965. He stated that he had not proof to show that Janak Raj Sharma had deserted the defendant no.1 and voluntarily stated that he was an alcoholic and used to beat her and had thrown her out of the house. He stated that Bimla Devi herself informed him about the said fact. He stated that she requested Rajinder Pal Sharma to give her shelter as he was the owner of the property. He also volunteered to state that he along with his family were also living as licencees of Rajinder Pal Sharma. He denied the suggestion that Shakuntala Devi v. Bimla Page No. 90/138 CS DJ No. 613224/2016 Bimla Devi came to the suit property as wife of co-owner. He denied the suggestion that on account of the 1965 war between India and Pakistan, family members were instructed to go to their own homes and hence Bimla Devi came home. He volunteered to state that Secunderabad was not affected by the war and denied the suggestion that it was the reason for Bimla Devi to come to the property in question. He denied the suggestions that MCD issued a show-cause notice dated 24.05.2006 as the plaintiff had given a false affidavit claiming to be in exclusive physical possession of the property. He also denied that there there was family settlement recorded between Rajinder Pal Sharma and the defendant no.1 and voluntarily stated that the same was a forged document against which criminal proceedings were ongoing. He also denied that the property was constructed from the joint funds of Janak Raj Sharma, who also contributed in it as property was HUF. The cross-examination on behalf of the defendants of the witness was concluded and no cross-examination was Shakuntala Devi v. Bimla Page No. 91/138 CS DJ No. 613224/2016 conducted of the witness by lf. Counsel of Lr. No 1c namely Smt. Anita Sharma despite opportunity given.
76. On 01.06.2016, the LRs of the plaintiff also closed their evidence in affirmative, vide statement of Sh. Subhash Sharma, ld. Counsel.
Evidence adduced by the Defendants
77. On 07.09.2016, Hawaldar Sh. Sandeep Kumar (15815408K), HQ, Gopi Nath Bazar, Delhi Area, Delhi Cantt - 10 was examined as DW-1, who produced the summoned record i.e. Reply dated 31.10.2008 under the Right to information Act, 2005 (RTI Act) as Ex. DW-1/A and reply dated 06.12.2008 and 29.12.2008 under RTI Act as Ex. DW-1/B and Ex. DW-1/C. Reply dated 05.10.2009 as under RTI Act as Ex. DW-1/D. Addition/deletion of family issued by Army Base Workshop Delhi Cantt. on 27.05.1975 as Ex. DW-1/E. During his cross-examination dated 08.09.2016 he deposed that he did not know the date Shakuntala Devi v. Bimla Page No. 92/138 CS DJ No. 613224/2016 of birth of the applicant Satya Prakash as he had simply brought the records in terms of the summons.
78. The defendant no.2 Sh. Surender Kumar Sharma examined himself as DW-2 and tendered his evidence by way of affidavit as Ex. DW-2/A on 08.09.2016 in which he reiterated the contents of the written statement.
79. He relied upon the following documents in support his case in his affidavit in evidence Ex. DW2/A:
i. The copy of two Farad of land in his native village Oal Himachal Pradesh as Mark A. ii. The letter No 3335/AK Sharma/RTI dated 29 Dec 2008 received from Army Headquarter Delhi Area Delhi Cantt. Ex. DW2/2.
iii. The letter No Ni50618/Accts/RTI//Pt.III dated 15 Oct 2008 received from Army Base Workshop as EX. DW2/3. iv. Letter No. 3335/Gen/RTI/GS(Edn) dated (31 Oct 08 received from Headquarter Delhi Area Delhi Cantt, Shakuntala Devi v. Bimla Page No. 93/138 CS DJ No. 613224/2016 showing the duration of his service with Army Base Workshop Delhi Cantt as EX. DW2/4.
v. Another letter No.3335/S.k Sharma/RTI dated 6 Dec 2008 received from Headquarter Delhi Area Delhi Cantt, shows staff No 1182 issued to Sh Sat Parkash while working with Army Base Workshop Delhi Cantt as EX. DW2/5.
vi. A certificate received from Army No 1. shows the service detail of Sh Janak Raj in Indian Army and his residence address of Motibagh Sarai Rohalla Delhi in the year 1948 is EX. as DW2/7.
vii. Letter No.20803/7012797/OS/RPS/Est/NI dated 11 April 2008 received from Army Base Workshop Delhi Cantt as EX.DW2/8.
viii. A certificate issued in 1963 by education department to Ms Santosh as EX.DW2/9.
ix. Letter from Ramesh Nagar post office as Ex.DW2/10. x. Saving account with UCO Bank branch vide saving account No 2571 which as EX.DW2/11 and higher Shakuntala Devi v. Bimla Page No. 94/138 CS DJ No. 613224/2016 secondary passed certificate of 1969 as EX.DW2/12. Punjabi Bagh.
xi. A Letter from M/s Gurco Pharma as EX.DW2/13, xii. A letter from Air Force Central School as EX. DW2/14, and then finally she joined National Physical Laboratory Pusa Delhi and retired from there in the year 2008 as Ex. DW-2/15 xiii. A letter from BEL regarding service detail of Sh. Janak Raj as EX.DW2/16.
xiv. Document in respect of pension from Army Sainik board as Mark B and photocopy of Syndycate Bank Pass book pension received through it and a photocopy of document of BEL pension received by his mother Smt Bimla Devi through Ramesh Nagar General post office Delhi as Mark C. xv. The marriage card of Ms Santosh as EX.DW2/19 and the Certificate Pardhan Sh Shiv Kumar gram Panchayat of village Nari Himachal Pradesh as EX.DW2/20. xvi. The Farad of land and certificate shop received from Shakuntala Devi v. Bimla Page No. 95/138 CS DJ No. 613224/2016 Patwarkhana issued by Pardhan Sh Shiv Kumar defendant No 1 as EX/DW2/21.
xvii. Document showing that he joined as Sales Executive with an Airline as Ex. DW2/22.
xviii.Photocopy of Airport pass of 1996 as Mark J as Air port Manager; Service Certificate received from Jet Air as Mark D, photograph of Gold coin of 15 gram and 20 gram received from JET Air for excellent completion of service of 15 and 20 years with JET Air as EX.DW2/25. The statement of deduction of Income Tax by Jet Air taken out from internet as Mark D. xix. A letter No20803/7012797/OS/RPS/Est (N1) dated 18 March 2008 received from Army Base Workshop Delhi Cantt that shows pension and cash in hand salary in Jan 1962 and 1970 received by Sh Rajinder Pal as EX.DW2/27.
xx. letter No Sushil Chander ConAdm. V. dated 29 Jan 2010 received from his office NITI AAYOG as EX.DW2/28.
Shakuntala Devi v. Bimla Page No. 96/138 CS DJ No. 613224/2016 xxi A FIR No. 141/82 registered U/s 392/34 dated 6.4.82 Punjabi Bagh Delhi as Mark E and Mark F was a letter from DTC.
xxii. Copy of FIR No.274/85 U/s 61/1/14 Excise Act Police Station Kotwali Faridabad as Mark G. xxiii. The copy of statement submitted in this court and the same as Mark H. xxiii. A receipt of Rs.35,000/- as EX.DW2/33. xxiv. Photocopy of deed of settlement to defendant No.
1.DM2/Mark34 and the NOC as Ex.DW2/Mark35 and electricity bill paid in 1987/8 as Ex.DW2/Mark36. The NOC and boring water bill as Ex.DW2/38. Water connection as Ex.DW2/Mark37 xxv. The receipts issued by MCD for house tax paid in 2004, 2005, 2006, 2007, collectively as Ex.DW2/39.
xxvi. Copy of show cause notice as Mark L. xxvii. Letter against Smt Bimla Devi in her native village to the Pradhan Sh Shiv Kumar of Gram Panchayat Village Nari as Mark NW2/41.
xxviii.The copy of letter written by Sh Ashok Kumar to Shakuntala Devi v. Bimla Page No. 97/138 CS DJ No. 613224/2016 MCD also as Ex.DW2/41.
xxix. Statement 6.9.2013 as Ex.DW2/42 of MCD official xxx. The letter written by Sh Ashok Kumar to his elder brother Sh Manoj Kumar as Mark M. The affidavit dated 7th Feb 2008 submitted by Sh Manoj Kumar in this civil suit No.62/2007 as Ex/DW2/44.
xxxi. Plaintiff Smt Shakuntla Devi also filed suit No 514/2008 as Ex.DW2/45 for eviction.
Xxxii.A FIR was filed against the defendant as EX.DW2/46. the Copy of bail xxxiii.CD submitted in this civil suit EX/DW2/47. xxxiv.The letter No 1410 dated 17.3.2010 from HUDA as Mark K. xxxv. Letter to Income Tax office dated 7 May 1986 as EX.DW2/49.
xxxvi.The copy France Visa in 1978 as Mark O.
80. During his cross-examination dated 08.02.2017, the defendant no.2 stated that he was presently residing at Janak Puri at the house of his in-laws due to the demise of his brother in law and two weeks prior to the same, he was residing at his address at Punjabi Bagh. He denied that he had not been residing at Punjabi Bagh since last 8-9 years. Shakuntala Devi v. Bimla Page No. 98/138 CS DJ No. 613224/2016 He deposed that he was a graduate in economics and had four sisters, who had taken their primary education at Delhi. He stated that he was 13 years of age when he came to Delhi in April, 1965 and had shifted from Secunderabad, Andhra Pradesh to Delhi in 1965. He admitted that his information relating to the property in question was based on the information provided to him by his mother/defendant no.1 and his grandmother. He further stated that since his father was in army, therefore he had not told him the facts which have been mentioned by him in his evidence by way of affidavit. Thereafter, the further cross-examination of the witness was deferred.
81. The defendant no.2 was then cross-examined on 23.05.2017, during which he deposed that his grand father's name was Pt. Parmeshwari Dass, who had five children, out of which Rajinder Pal Sharma was the eldest child. He denied the suggestion that the eldest child was Sh. Sat Prakash Sharma. He admitted that he did not have any documentary proof in this regards. He deposed that Shakuntala Devi v. Bimla Page No. 99/138 CS DJ No. 613224/2016 Rajinder Pal Sharma had completed matriculation, however his father Janak Raj and uncle Jaswant Rai had only passed middle school and Sh. Sat Prakash was not literate. He deposed that his uncle Jaswant Rai started serving in the army in 1943 and Sat Prakash started working in Delhi in 1948. He stated that his father Janak Raj Sharma joined the army in 1948 and Rajinder Pal Sharma started working in 1950. He denied the suggestion that Rajinder Pal Sharma had joined the army in 1942 itself. He also denied the suggestion that his father Janak Raj Sharma never worked in Delhi in Army battalion no. 505 and volunteered to state that his father started working as a helper in the battalion. He deposed that he did not know at what position his father Janak Raj Sharma had joined the army, however he retired as Hawaldar. He deposed that he did not know the exact amount of salary drawn by his father at the time of his retirement and volunteered to state that as told by his grandmother, his father was drawing the same salary as his uncle Jaswant Shakuntala Devi v. Bimla Page No. 100/138 CS DJ No. 613224/2016 Rai. He denied that he had taken the said information under the RTI Act, regarding the service record of his father Sh. Janak Raj. He volunteered to state that he had applied for the same, but was not provided. He stated that he could not ascertain whether the document Mark X/P-1 shown to him was the information regarding the salary record of his father Sh. Janak Raj. He deposed that the his grandfather's family had been residing in the area of Sarai Rohilla since 1943. He stated that all his uncles and his father were residing in the same house. He denied the suggestion that his grandfather's children were residing separately or that he was deposing falsely on this aspect. The further cross-examination of the witness was then deferred.
82. During his cross-examination dated 27.07.2018, defendant no.2 denied that he had been provided the service record of his father Janak Raj under the RTI Act. He admitted that he had given instructions to the Shakuntala Devi v. Bimla Page No. 101/138 CS DJ No. 613224/2016 concerned office that in case any information was sought relating to his father Sh. Janak Raj, the same ought not to be provided to anyone under the RTI Act without his permission. He stated that he did not have any documentary proof to show that his father had studied upto middle school only. He denied that his evidence by way of affidavit was contrary to the pleadings in his written statement. He denied the suggestion that all his uncles had never resided together in Delhi. He stated that his grandmother was residing with all her sons together. He admitted that as per the document Ex. DW-1/C, his grandmother had been shown as living with the family of Jaswant Rai and volunteered to state that the document was prepared only for the purpose of dispensary card. He deposed that his father Janak Raj Sharma had worked in BEL from January, 1974 till May, 1979. The further cross- examination was then deferred.
83. During his cross-examination dated 18.09.2017, Shakuntala Devi v. Bimla Page No. 102/138 CS DJ No. 613224/2016 defendant no.2 admitted that he had stated in written statement that the source of income of Udhmi Devi was agricultural land which was still in the joint name of all family members. He stated that he did not remember the name of all the four sons of his grandfather. He deposed that his grandfather had three other brothers and denied that there were only two other brothers. He deposed that out of the joint holding of agricultural land, their cousin brother Raju had sold his undivided share in the land, but did not remember to whom it had been sold. He stated that he did not know whether anyone else in the family had also sold their undivided share in the land. The witness stated that Mark P-1 must be the fard/jamabandi for the year 2001-2002 with respect to their agricultural land in Village Oel, District Amb, HP. He deposed that he could not state after going through he same whether the undivided share in the joint agricultural land of the family had been sold to Harvinder Singh and Surjit Singh. He denied the suggestion that he had not placed on record the Shakuntala Devi v. Bimla Page No. 103/138 CS DJ No. 613224/2016 service records of his father and volunteered to state that he had filed on record the service certificate of his father. He deposed that he did not know on which years his uncles came to Delhi to stay. He further deposed that he could neither admit or deny that after shifting from Himachal Pradesh, his uncles lived together at Village Naraina as the same had been told to him by his mother. He further admitted that all the information regarding joint property of family was received by him from his grand mother and his mother/defendant no.1 and he did not receive any such information from his father. He deposed that he did not know the details of the retirement benefits received by his father as all the records in this regards were with Sushil Chandra Sharma and denied that he was falsely deposing on this aspect. He also admitted that he did not have any record regarding contribution of his father in the construction/purchase of the suit property. He deposed that his father joined BEL in January, 1974 and denied that his father never got any pension from BEL, and voluntarily Shakuntala Devi v. Bimla Page No. 104/138 CS DJ No. 613224/2016 stated that his mother used to get two pensions in the name of his father. However, he could not state as to the amount of pension received by his mother under the said two pensions. He stated that in the year 19764, he was 23 years of age and that his mother used to get pension in cash and that he they used to pay money in cash towards construction of the second floor of the property in question. He admitted that he did not have record regarding the alleged payment made from their side towards the construction of the second floor of the property in question. Thereafter, the further cross- examination of the witness was deferred,
84. On 17.11.2017, the defendant no.2 was recalled for his further cross-examination, during which he denied the suggestion that his father's brothers never resided together at Sarai Rohilla, Delhi on the basis of documents Ex. DW-1/C, Ex. DW-2/2 and Ex. DW-2/7 and used to reside separately. He deposed that he was told about the same by his grandmother, all the brothers used to reside together Shakuntala Devi v. Bimla Page No. 105/138 CS DJ No. 613224/2016 prior to 1948. He denied the suggestion that his grandmother had income from agricultural land at Himachal Pradesh and the same was false. He also denied the suggestion that in the village, his father and three brothers all had separate agricultural lands and deposed that there was a joint landholding. The witness produced a 'Himachal Pradesh Kissan Pass Book', Ex. DW-2/P2 (OSR), and stated that the same was issued in the year 2002 after the death of his uncle Rajinder Pal Sharma. He denied the suggestion that as per Ex. DW-2/P2, the agricultural land at Himachal Pradesh already stood partitioned between his father and his brothers and volunteered to state that he had filed a partition suit at a civil court at Tehsil Amb, Distt, Una, HP. He denied the suggestion that till 2001, the agricultural lands at the village was joint and was confronted with another 'Himachal Pradesh Kissan Book' in the name of Suhil Chandra, son of Rajinder Pal Sharma, Ex. DW-2/P3 (Colly) (OSR). He deposed that he had no knowledge Shakuntala Devi v. Bimla Page No. 106/138 CS DJ No. 613224/2016 whether on 14.06.1957, a plot of land was bought at Village Oel, Himachal Pradesh jointly in the name of his father and his three brothers. Attention of the witness was drawn to document Ex. DW-2/P4 (Colly), he also denied the suggestion that as per the said document, his father and three brothers were living separately and there was no coparcenary or any Joint Hindu Family amongst them. The witness was also confronted with a jamabandi, Ex. DW-2/P5 (OSR) and questioned whether as per the said document, Sh. Satya Prakash was the eldest amongst the four brothers, which he denied. He deposed that Rajinder Pal Sharma was the eldest and also the Karta of the joint Hindu family. He deposed that he had no document to show that late Rajinder Pal Sharma was the karta of the joint Hindu family or that there was a joint Hindu family in existence. He volunteered to state that Rajinder Pal Sharma was handling the finances of the same. He stated that there was no bank account in the name of the HUF and again stated that he did not know whether the HUF had a bank Shakuntala Devi v. Bimla Page No. 107/138 CS DJ No. 613224/2016 account. He deposed that the HUF was also never registered on account of mutual trust. He admitted that his father had conveyed no information to him regarding the HUF and its affairs and stated that on the death of his father in 1979, all the files pertaining to the HUF were taken away by Rajinder Pal Sharma. Thereafter, the further cross-examination of the witness was deferred.
85. On 14.12.2017, the defendant no.2 denied the suggestion that the service record of his father was not with Sushil Chand Sharma or his father Rajinder Pal Sharma and volunteered to state that they were with Rajinder Pal Sharma. He admitted that he had no record of the construction raised by Rajinder Pal Sharma in the suit property, and denied the suggestion that he had no such record as no money had been paid by him. He deposed that his mother was educated upto VIIIth standard and could not read or write English. He deposed that he did not know about the educational qualifications of his grandmother Shakuntala Devi v. Bimla Page No. 108/138 CS DJ No. 613224/2016 Smt. Udhmi Devi or that she was completely illiterate. He denied the suggestion that in her old age, the defendant no.1 was unable to walk and an acquaintance of her as the Army Sainik Board used to write letters for her in English. He denied the suggestion that he used to write the said letters in English for the defendant no.1. He deposed that the pension of his father used to be credited directly to the bank account of his mother and would go unaccompanied to the Bank. He admitted that his father was never posted at Delhi between 1948 to 1971. He denied the suggestion that one plot of land had been purchased in the name of the four brothers, however not as HUF. Thereafter the further cross-examination of the witness was deferred.
86. During his cross-examination dated 19.12.2017, he stated that his mother had passed away on 22.12.2009 at the age of 82 years. He again denied the suggestion that his mother was illiterate and deposed that she had taught him arithmetic and was educated upto VIIIth standard. He Shakuntala Devi v. Bimla Page No. 109/138 CS DJ No. 613224/2016 denied the suggestion that his mother had been unable to walk upto four years prior to her death. The witness was confronted with documents Ex. DW-2/P5 and Ex. DW-2/P6. He deposed that his mother may have filed Ex. DW-2/P5 on record. He stated that he was not sure whether his mother had filed Ex. DW-2/P6 with the investigating officer, PS Punjabi Bagh and stated that the same was only a copy and undated. He denied the suggestion that there was no HUF at all in the family. The witness was also shown document Ex. DW-2/1 (Mark A) and was asked as t o how many families/persons owned the land. He deposed that he did not know about the same and stated that he could neither affirm nor deny that around 25 families, including ladies, owned the land in the village as per Ex. DW-2/1 (Mark A). He admitted that he shifted to the second floor of the suit property with his mother and wife in the year 1987. He deposed that he used to pay his share of the house tax to the plaintiff in cash and denied the suggestion that no such contribution had been Shakuntala Devi v. Bimla Page No. 110/138 CS DJ No. 613224/2016 made by him. He stated that no application was filed for mutation of the second floor of the property in their name in 1987. He admitted that he did not have any receipt for house tax period till the year 2004. He further admitted that in the year 2004, under a new MCD Scheme, they started voluntarily paying house tax of the second floor to MCD. He denied the suggestions that Ex. PW-1/D1, i.e. receipt for Rs. 35,000/- and family settlement Mark B were both forged and fabricated documents. He also admitted that an FIR bearing No. 128/2009 under sections 465/471/420/511 IPC had also been filed with PS Punjabi Bagh, in respect of which he, along with his wife and sister and another persons were facing trial and enlarged on bail. He deposed that his mother had applied to the MCD in 2006 for mutation of the second floor of the property, on which notice had been issued to the plaintiff. He denied the suggestion that the MCD refused to mutate the same in favour of the defendant no.1 and asked her to obtain a succession certificate. He denied the suggestion that vide Shakuntala Devi v. Bimla Page No. 111/138 CS DJ No. 613224/2016 Order dated 14.07.2006, Ex. DW-2/P7, passed by the Assessor & Collector, West Zone, MCD the MCD declined to mutate the property in the name of the defendant no.1. He volunteered to state that they never got a copy of the MCD order. He deposed that no action was taken by them for not receiving the order from MCD with respect to the application for mutation of the second floor. He deposed that he bought a plot of land from Sharda Charan Sharma, son in law of the plaintiff in 1982 at Bahadurgarh, Haryana. The witness was then confronted with Ex. DW-2/P8 which he admitted. He deposed that he did not have any knowledge his uncle Sh. Jaswant Rai had bought a DDA house in Bhat Nagar, Shahdra, Delhi in the 1970s. He also deposed that he had no knowledge whether his sister Santosh Sharma purchased a plot from DDA prior to her marriage.
87. The defendants no.2, was re-called for his further cross-examination on 10.01.2018, during which he Shakuntala Devi v. Bimla Page No. 112/138 CS DJ No. 613224/2016 deposed that his last job was with Jordan Airlines at IGI Airport as Flag Coordinator. He deposed that he joined Jet Air on 05.02.1981, which was the handling agent for around 12 Airlines. The defendant no.2, placed a copy of his identity card at Jet Airways as Ex. DW-2/51. He denied the suggestion that he was not an employee of Jordan Airlines and merely a handling agent of Jordan Airlines. He deposed that his salary used to be disbursed by the Jet Group, however had been issued an identity card by Jordan Airlines and placed on record his identity card of Jordan Airlines as Ex. DW-2/52. He also admitted that he only had an appointment letter from Jet Group and not from Jordan Airlines. The witness was then confronted with letter dated 04.07.2006, Ex. DW-2/P9 written by the defendant no.1 to the Assistant Assesor & Collector, MCD, and letter dated 14.07.2006, Ex. DW-2/P10 and asked whether he had falsely deposed that the defendant no.1 did not follow up with the MCD for mutation of the second floor of the property, to which he deposed that the Shakuntala Devi v. Bimla Page No. 113/138 CS DJ No. 613224/2016 said letters were not within his knowledge. The witness was also confronted with document Ex. DW-2/P11 issued by the DDA with respect to allotment of flat to Jaswant Rai Sharma, and he deposed that the same was also not within his knowledge. The defendant denied the suggestion that Sat Prakash expired on 28.02.1959 and stated that he expired on 06.06.1958 and was confronted with a copy of the death register in urdu and its hindi translation as Ex. DW-2/P12 and Ex. DW-2/P-12A. He then admitted that as per document filed by him on record, Sh. Sat Prakash had only resigned on 06.06.1958. He denied the suggestion that Sh. Rajinder Pal Sharma was working as a clerical supervisor with the 505 Army Base Workshop and drawing a salary of Rs. 152/- and not Rs.93/-. The defendant no.2 was also confronted with documents Ex. DW-2/P13 (Colly), which he stated were forged and fabricated. He denied the suggestion that his maternal grandfather Sh. Babu Ram was a pauper and and never served in the Indian Railways. He admitted that he Shakuntala Devi v. Bimla Page No. 114/138 CS DJ No. 613224/2016 had only heard the same from his mother the defendant no.1 that he was a rich person and had worked in the Indian Railways. The defendant no.1 was also confronted with the copy of the registered will of Sh. Babu Ram dated 19.03.1978, Ex. DW-2/P14, to which he stated that he had no knowledge about the same. He also denied the suggestion that agricultural land at Tehsil Amb, District Una, Himachal Pradesh of Sh. Babu Ram was also mutated in favour of the defendant no.1 on the basis of the said will dated 19.03.1978 of Sh. Babu Ram. He also denied the suggestion that he himself had gotten the mutation done. He also admitted that as a wrong mutation had been done in the name of the defendant no.1, a civil suit was also filed, and was confronted with copy of an appeal as Ex. DW-2/P15. He also admitted that the letter of June, 2006, Ex. PW-1/10 issued by Manoj Kumar, Ashok Kumar, and Kamal Kishore, sons of Jaswant Rai to the MCD was dated 14.06.2006 and not 16.06.2006. He denied that the said letter was genuine and was not forged or fabricated. He Shakuntala Devi v. Bimla Page No. 115/138 CS DJ No. 613224/2016 also denied the suggestion that he had won over Ashok Kumar Sharma, who was residing on the first floor of the property, who had also filed a civil suit with respect to the first floor, which was pending adjudication before the Courts at Tis Hazari.
88. During the cross-examination of the defendant no.2/DW-2 on 11.01.2018, he denied the suggestion that Sat Prakash Sharma was the eldest son of Udhmi Devi. A first he denied that the date of birth of Rajinder Pal Sharma was 15.09.1919 and on being confronted with document Ex. DW-2/P16, admitted the same. He denied the suggestion hat the CD referred to in para no. 46 of his evidence by way of affidavit had no correlation with present case. He admitted that the only basis on which he had stated that Rajinder Pal Sharma was the eldest amongst the brothers was that his grandmother had told him so. He also denied the suggestion that in December, 1964 there was no common kitchen. He denied the Shakuntala Devi v. Bimla Page No. 116/138 CS DJ No. 613224/2016 suggestion that Udhmi Devi had not shifted to the suit property in 1964 and used to reside in the village and would come to Delhi only occasionally. He admitted that he had no documents to show that his father had worked in Delhi, giving the reasons that at that time he was not born.
89. The defendant no.2/DW-2 was re-called for his further cross-examination on 26.02.2018, he deposed that after the death of his mother/defendant no.1 on 22.12.2009, his maternal grand father's property at Sub Tehsil Bharwai, District Una, Himachal Pradesh devolved upon him and his sisters. He denied he suggestion that Ashok Kumar did not prepare any CD as referred by him in his evidence by way of affidavit. He also admitted that he had no receipt with respect to payment of Rs. 25,000/- to Rajinder Pal Sharma on selling of his plot at Bahadurgarh, Haryana. The witness admitted that an application under Order 8 rule 1A CPC Ex. DW-2/P17 had been filed by him. He denied the suggestion that no mutual Shakuntala Devi v. Bimla Page No. 117/138 CS DJ No. 613224/2016 agreement with respect to construction of the first floor of the property. He deposed that he did not have any copy of such agreement. He denied the suggestion that the Village Pradhan Shiv Kumar Kaul, had no power to issue the letter Ex. DW-2/20 with respect to transfer of the property. He was then confronted with document Ex. DW-2/P-18 showing that the government had apprised the Village Pradhan Shiv Kumar Kaul that he had no power to issue such letter, to which he stated that he had no knowledge about the same. He also admitted that as per copy of charge-sheet Ex.DW-2/P19, the names of Satish Chandra Sharma, Sushil Sharma and R. P. Sharma were not present. He denied the suggestion that he had falsely stated in para no.33 of his evidence by way of affidavit that physical and financial help was provided by him and his family to Satish Chandra Sharma, Sushil Sharma and R. P. Sharma with respect to the criminal cases. He also admitted that Jugal Kishore was acquitted in the said case. He denied the suggestion the document Ex. DW-2/30 (Mark F) had no Shakuntala Devi v. Bimla Page No. 118/138 CS DJ No. 613224/2016 relevance to the present case.
90. The defendant no.2/DW-2 was re-called for his further cross-examination on 28.02.2018, during which he denied the suggestion that the receipt of Rs. 35,000/- Ex. DW-2/33 was forged and fabricated and did not have the signatures of Rajender Pal Sharma. He admitted that he had no document to show that the joint Hindu family was partitioned in 1987. He also denied the suggestion that there was no joint Hindu family and a plot was also purchased in the name of his father and brothers vide sale deed, Ex. DW-2/P4 in 1957. The witness denied the suggestions based on the case of the plaintiff, which have already been repeated on numerous earlier occasions, which are not being repeated here. The witness also denied that on the basis of Ex. DW-2/P-20 (Colly) he was not residing in the suit property at present.
91. The defendant no.2/DW-2 was re-called for his Shakuntala Devi v. Bimla Page No. 119/138 CS DJ No. 613224/2016 further cross-examination on 04.04.2018, during which he deposed that he did not know whether the land at Village Pel, Himachal Pradesh, of which he had placed on record the fard, belonged to more than 25 families apart from their family. He denied the suggestion that Mr. Rajinder Pal Sharma did not spend any money on the marriage of his sisters Santosh, Sudesh and Saroj . He also denied the suggestion that in 1985 the first floor of the property had not been constructed and volunteered to state that the same had been constructed in 1976. He denied that as per documents Ex. DW-1/P-21 (Colly) he and his wife had made statement before the police that no electricity meter could be sanctioned for the second floor of the property. He deposed that his mother/defendant no.1 had lodged a police complaint with respect to the false affidavit of the plaintiff and denied the suggestion that no such complaint had been lodged. He denied the suggestion that his mother Bimla Devi/defendant no.1 died a natural death and not on account of shock and humiliation out of any letter written Shakuntala Devi v. Bimla Page No. 120/138 CS DJ No. 613224/2016 by Satish Chandra Sharma to the Village Pradhan. He denied the suggestion that the correct salary of Late Sh. Rajinder Pal Sharma was as per Ex. DW-2/P12. He denied the suggestion that the plaintiff had given him Rs. 1 lakh as loan to purchase plot from HUDA at Bahadurgarh, Haryana. He admitted that all the husband, sons, daughters and daughters-in-law of the plaintiff were employed in government jobs. He again admitted that he had no document to show that his father had given any money to Rajinder Pal Sharma on account of an HUF being in existence, and deposed that all the documents were with Rajinder Pal Sharma.
92. The defendant no.2/DW-2 was re-called for his further cross-examination on 14.05.2018, He denied the suggestion that Smt. Udhmi Devi had purchased the suit property plot in 1952 from the common funds of her four sons. He further stated that he could not furnish the account statement of all the four sons of Udhmi Devi of the year 1952. He further deposed that he had waited 18 Shakuntala Devi v. Bimla Page No. 121/138 CS DJ No. 613224/2016 years since 1987 to get the mutation of the second floor of the suit property, since it had to be done by Rajinder Pal Sharma and his mother. He also admitted that suggestion that Sushil Chand Sharma did not execute any will in respect of the first floor of the property in favour of the two sons of Jaswant Rai Sharma. He also denied the suggestions that there was no joint Hindu family in existence ever and the plot and plot property in question was the self acquired property of Sh. Rajinder Pal Sharma, who had accommodated the defendants on compassionate grounds in the same. He also denied the suggestion that Sushil Chand Sharma had not made any complaint against his mother, and rather it his mother/defendant no.1 who had made complaint against him as Ex. DW-2/P22. The defendant no.2 was also confronted with documents Ex. DW-2/P-23 (Colly) with respect to Late Sh. Rajinder Pal Sharma and denied that he had received certificate of exemplary and distinguished service from the Army. Thereafter, the witness/defendant no.2/DW-2 was Shakuntala Devi v. Bimla Page No. 122/138 CS DJ No. 613224/2016 discharged.
93. Sh. Jagjit Singh, Office Suptd. Army Base Workshop, Delhi Cantt. was examined as DW-3 on 07.09.2016, who produced the summoned record, i.e. reply under RTI Act dated 18.05.2008, 15.10.2008 and 12.04.2008 as Ex. DW-3/A, Ex. DW-3/B and Ex. DW-3/C respectively. He produced the details of the basic pay of Rajinder Pal Singh as Ex. DW-3/D. During his cross- examination dated 08.09.2016, DW-3 stated that the expression 'pay' and 'salary' is different as salary included allowances and other perks.
94. Sh. A Bhattacharya, Under Secretary, Department of Expenditure, Ministry of Finance, was examined as DW-4 on 08.09.2016, who produced the summoned record, i.e. information furnished to the defendant no.2 under RTI Act, vide reply dated 09.01.2013 (on his application dated 28.11.2012 as Ex. DW-4/A) as Ex. DW-4/C and reply dated 20.06.2014 (on his application dated 25.05.2014 as Shakuntala Devi v. Bimla Page No. 123/138 CS DJ No. 613224/2016 Ex. DW-4/B) as Ex. DW-4/D. No cross-examination of the witness was conducted by the ld. counsel for the plaintiff.
95. Sh. Anil Arora, Assistant Finance Officer, BSES, Punjabi Bagh, New Delhi was summoned as DW-5 on 08.09.2016 who produced the summoned record pertaining to meter CA No. 1-2711536 installed in the name of the defendant no.1. He deposed that there was no original NOC of Rajinder Pal Sharma on record and stated that there was only a photocopy of the same, and produced the same as Ex. DW-5/A.
96. Sh. Trilochan Singh, UDC, Delhi Jal Board, Zonal Revenue Office, Punjabi Bagh was summoned as DW-6 on 25.11.2016, who produced the summoned record pertaining to the water connection bearing K No. 2481281000 in the name of the defendant no.1 as Ex. DW-6/A. During his cross-examination, he deposed that normally the department sanctioned water connection in Shakuntala Devi v. Bimla Page No. 124/138 CS DJ No. 613224/2016 the name of any consumer on the basis of documents of title. He deposed that as per the record, there was no document of title in favour of the defendant no.1, however there was one NOC of Sh. Rajinder Pal Sharma. He deposed that he could not affirm or deny whether they bore his signatures or whether the same was a forged document.
97. Sh. Yogender Singh, Ahlmad of MM Court, Tis Hazari was summoned as DW-7, who produced the summoned record with respect to Case FIR no. 128/2009, State vs Santosh Sharma in which one original NOC given by Rajinder Pal Sharma in favour of the defendant no.1 to the DESU (Delhi Electrical Supply Undertaking) as Ex. DW-7/A. During his cross-examination he deposed that it was correct that as per the record, the signatures of Rajinder Pal Sharma on Ex. DW-7/A were referred to CFSl, however he did not know about the report given by the CFSL. He also admitted that the judicial record contained one original application for electricity Shakuntala Devi v. Bimla Page No. 125/138 CS DJ No. 613224/2016 connection file before DESU by Sh. Rajinder Pal Sharma as Ex. DW-7/A/P-1. He deposed that he could not examine the signatures on the two documents.
98. On 05.06.2018, Ashok Kumar, son of Jaswant Rai Sharma was examined as Ex. DW-8, who tendered his evidence by way of affidavit as Ex. DW-8/A in which he deposed that in 1986 the second floor of the property was constructed and after its construction, the defendant no.1 paid an amount of Rs. 35,000/- by cheque to Rajinder Pal Sharma, who also executed a receipt in his present. During his cross-examination, he deposed that it was correct that he had stood as surety for the defendant no.2 in FIR no.
128/2009, PS Punjabi Bagh under sections 420/465/467/511 IPC and Sh. Asha Ram was also arrested in the said case. He also admitted that the plaintiff had also filed a case against him to vacate the portion of the first floor of the property, which was still pending. He also admitted that he had filed an application seeking clubbing Shakuntala Devi v. Bimla Page No. 126/138 CS DJ No. 613224/2016 of the present case with the said case, which had been dismissed. He also admitted that he had filed an application under Order 1 rule 10 CPC in the present case seeking impleadment, which had been dismissed. He deposed that the cheque of Rs. 35,000/- had been given in his present by the defendant no.1 to Sh. Rajinder Pal Sharma along with his father Jaswant Rai Sharma and jija Asha Ram. He denied the suggestion that no such cheque was given or receipt was handed over. He deposed that the receipt was signed by Rajinder Pal Sharma and his father Jaswamt Rai Sharma and Asha Ram. The witness was also confronted with document Ex. DW-8/P1 of Punjab National Bank and suggested that the said cheque was never encashed, to which he deposed that he had no knowledge with respect to the same. He also admitted that the defendant no.2 Surender Kumar Sharma had handed over keys of the second floor of the property to take care of the same and volunteered to state that he kept coming and going to the said property. He deposed that his Shakuntala Devi v. Bimla Page No. 127/138 CS DJ No. 613224/2016 signatures on Ex. DW-8/P-2, being his NOC given to MCD for mutation of the suit property in favour of the plaintiff had been obtained fraudulently on the ground that he had to sign certain documents relating to house tax, which he signed on good faith. He denied the suggestion that he was deposing falsely as he had two litigations, civil and criminal, ongoing with Sushil Chander Sharma. ARGUMENTS OF THE PARTIES:
99. Final arguments were adduced on behalf of Ld. Counsels for the parties. Sh. Subhash Chand Sharma, ld. Counsel for the plaintiff has argued that the defendants have miserably failed to prove their case that there was either a HUF or that the property in question was a joint family property. The defendants have not placed on record any documentary proof with respect to any contribution made by them or any other person with respect to purchase of the plot or raising the constructions thereon. Further, the defendants have not even led in evidence the alleged Shakuntala Devi v. Bimla Page No. 128/138 CS DJ No. 613224/2016 family settlement deed dated 09.05.1987. Hence, the suit be decreed as prayed for.
100. On the other hand Sh. Rahul Sharma has argued that the defendants have been able to prove that the suit property is a joint family property, purchased in 1952 on behalf of all the brothers. It is submitted that the defendants have duly proved that the said property was a joint family property, which has been purchased by Late Smt. Udhmi Devi out of amounts contributed by all the brothers. Hence, the suit of the plaintiff be dismissed with costs.
101. I have perused the record and thereafter, my issue- wise finding is as under:
ISSUE-WISE FINDINGS AND REASONS:
Issues no. 1, 2, 4 and 6
102. I shall first decide issues no. 1, 2, 4 and 6 together as they are connected issues and can be dealt with together. Shakuntala Devi v. Bimla Page No. 129/138 CS DJ No. 613224/2016 The same are reproduced below for the sake of convenience:
1. Whether plaintiff is the exclusive owner of the suit property? (OPP)
2. Whether the occupation of the defendant in the suit property was with permission of the husband of the plaintiff and they are now in illegal possession after that permission had been revoked? (OPP)
4. Whether plaintiff has no locus standie to file the suit? (OPD)
6.Whether defendant is living in the property in his own right as co-owner? (OPD)
103. The issues no.1 and 6 place the onus on the plaintiff and the defendants to prove their respective contentions.
104. The case of the plaintiff, pithily stated, is that her husband Rajinder Pal Sharma purchased the plot in question from the DLF in 1952 as his self-acquired property and also raised the constructions thereon, comprising of the ground floor, first floor and second floor from his own funds. It is her case that on the death of her husband on 04.06.2001, the other legal heirs executed relinquishment deeds in her favour and she became the Shakuntala Devi v. Bimla Page No. 130/138 CS DJ No. 613224/2016 owner of the suit property. The plaintiff expired before she could step into the witness box and her son Sh. Sushil Chander Sharma deposed as PW-1. He has relied upon the relinquishment deeds executed in favour of the plaintiff as Ex. PW-1/I and the sale deed executed in favour of Late Sh. Rajinder Pal Sharma as Ex. PW-1/2, which clearly records the plot in question being purchased by Late Sh. Rajinder Pal Sharma, husband of the plaintiff from DLF vide sale deed dated 29.12.1952 for a sum of Rs. 1760.20/-. The sale deed also records that it is Late Sh. Rajinder Pal Sharma who has made all the payments with respect to the purchase of the said plot. Further, it is not in dispute that Sh. Rajinder Pal Sharma expired on 04.06.2001 and thereafter his sons and daughter executed a relinquishment deed dated 08.06.2005 in favour of their mother/plaintiff. The property was also mutated in favour of the plaintiff on 23.08.2005. The said sale deed executed in favour of Sh. Rajinder Pal Sharma has stood unchallenged since its execution in 1952 and has not been Shakuntala Devi v. Bimla Page No. 131/138 CS DJ No. 613224/2016 questioned by either the defendants or their predecessor-in
-interest Sh. Janak Raj Sharma. Further, it is also an admitted fact that at the time of purchase of the plot in question by Sh. Rajinder Pal Sharma, he was gainfully employed in the services of the Army Based Workshop at Delhi Cantt and had sufficient resources to purchase the same.
105. The defendants on the other hand have set up a case on the basis of an alleged 'joint Hindu family' and 'Hindu undivided family'. The defendants have used the above two terms interchangeably, although they are not similar, without having proven the existence of either in my considered opinion. In the written statement filed by the defendants no.1 and 2, it is alleged that there existed a joint Hindu family with the grandmother Late Smt. Udhmi Devi as its head. No documentary proof of the existence of the said joint Hindu family has been led in evidence by the defendants to support the said contention. Further, the Shakuntala Devi v. Bimla Page No. 132/138 CS DJ No. 613224/2016 defendant no.2 at multiple times during his cross- examination dated 08.02.2017, 18.09.2017 and 17.11.2017 has admitted that the entire information relating to the existence of a Joint Hindu Undivided Family was based upon hearsay information provided to him by his mother and grandmother. Further, it is also admitted by him that his father Late Sh. Janak Raj Sharma himself never told him about the existence of any such joint Hindu family. It is also admitted by the defendant no.2 that he had no documentary proof to show that Late Sh. Rajinder Pal Sharma was the karta of this Hindu undivided family or ever acted as one. The defendants have also failed to prove that their grandmother Late Smt. Udhmi Devi ever resided with them as well. Further, the defendants have also admitted that they have no documentary proof with respect to any contribution having been made by any of the other brothers of Late Sh. Rajinder Pal Sharma towards the purchase or construction of the plot in question. The defendants have also failed to provide any documentary Shakuntala Devi v. Bimla Page No. 133/138 CS DJ No. 613224/2016 proof of having contributed to the construction of the plot in question by them. No documentary proof of any alleged common funds contributed by all sons of Late Smt. Udhmi Devi to purchase the plot in question has also been led in evidence by the defendants. The defendants have also not led any documentary proof to show that Late Sh. Rajinder Pal Sharma was the eldest son amongst his brothers. The defendant no.2 has relied upon an alleged payment of Rs. 35,000/- made by the defendant no.1 vide cheque No. 870764 dated 27.02.1987 drawn on Punjab National bank. Further an alleged receipt issued by Rajinder Pal Sharma has been relied upon as Ex. DW-2/33. However, during the cross-examination of DW-8 Sh. Ashok Kumar dated 18.09.2017, he also admitted that he could not confirm on the basis of Ex. DW-8/P1, whether the said cheque was ever encashed by Sh. Rajinder Pal Sharma or not. Further, the said witness DW-8, Sh. Ashok Kumar Sharma although deposed that the said receipt of Rs. 35,000/- was executed in his presence, the said receipt does not record Shakuntala Devi v. Bimla Page No. 134/138 CS DJ No. 613224/2016 his presence as a witness. Further, it is pertinent to mention that the defendants did not lead in evidence or prove the alleged settlement deed dated 09.05.1987 for reasons best known to them.
106. Hence, in view of the aforementioned facts, the defendants have failed to prove their version that the plot in question or the suit property over it constituted the HUF property or the joint family property. The defendants have also failed to prove that any amount was contributed towards either the purchase of the plot in question or to raise any construction thereon. On the other hand, the sale deed dated 29.12.1952 with respect to the purchase of the plot by Sh. Rajinder Pal Sharma, is admitted by the defendants, who have failed to prove that the same was registered in his name on account of an HUF or joint family property. The irresistible conclusion which further emerges is that the defendants, who have failed to prove their title to the suit property, were inducted as licencees Shakuntala Devi v. Bimla Page No. 135/138 CS DJ No. 613224/2016 by Sh. Rajinder Pal Sharma on compassionate grounds. The said licence also stood revoked by the plaintiffs vide legal notice dated 22.1.2007, Ex. PW-1/O, whose service was refused by the defendants vide Ex. PW-1/S and Ex. PW-1/T.
107. Therefore, the issues no.1 and 2 are decided in favour of the plaintiff. The issues no. 4 and 6 are decided against the defendants.
Issue no.3
108. I shall next decide issue no.3, which is reproduced below for the sake of convenience:
3. Whether plaintiff is entitled to the mesne profits, if so, at what rate and for which period? OPP
109. The plaintiff has claimed mesne profits mesne profits @ Rs.10,000/- per month from 01.02.2007. Although the plaintiff has led no evidence to prove the rate of the said mesne profits by leading in evidence the Shakuntala Devi v. Bimla Page No. 136/138 CS DJ No. 613224/2016 prevailing rentals in the said area. However, I find that that the property in question is located at Shivaji Park, East Delhi which is in a prominent area of Delhi and would atleast command a rent of Rs. 3000/- per month in the year 2007, subject to an annual increase of 10% p.a. on the said amount. Accordingly, the issue no.3 is decided in favour of the plaintiff and the plaintiff is held entitled to mesne profits of Rs. 3000/- per month from the date of filing of the suit, subject to an annual increase of 10% p.a. on the said amount.
Issue no.5
110. I shall lastly decide issue no.5, which is reproduced below:
5. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? (OPD)
111. The onus of the above issue was upon the defendants who have not led any evidence to prove that the present suit has not been properly valued. Accordingly, the issue no.5 is decided against the defendants. Shakuntala Devi v. Bimla Page No. 137/138 CS DJ No. 613224/2016 RELIEF
112. That in view of the aforementioned reasons, the suit of the plaintiff is decreed in her favour. The LRs of the plaintiff are held entitled to recover the possession of the suit property, i.e. second floor of the property H-72, Shivaji Park, Punjabi Bagh, New Delhi - 110026 from the LRs of the defendant no.1 and the defendant no.2. The LRs of the plaintiff are further held entitled to receive mesne profits of Rs. 3000/- per month from the date of filing of the suit, subject to an annual increase of 10% p.a. on the said amount. The costs of the suit are also awarded in favour of the plaintiff. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.
Digitally
signed by
JITEN JITEN MEHRA
Announced in the open court (JITEN MEHRA)
Date:
MEHRA 2025.03.29
04:44:56
+0530
on 29.03.2025 DJ-10/Central/THC/Delhi.
Shakuntala Devi v. Bimla Page No. 138/138