Delhi District Court
Shri Darshan Lal vs Smt. Neelam Bahl on 10 December, 2009
IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE13: CENTRAL DISTRICT: DELHI
Suit No. 98/2006
Shri Darshan Lal,
Son of Shri Jai Ram Dass,
Resident of 24/26A, Tilak Nagar,
New Delhi110018. ......Plaintiff
Versus
1. Smt. Neelam Bahl,
Wife of late Shri Om Prakash Bahl,
Resident of DB28F, LIG Flats,
G8 Area Rajouri Garden,
Hari Nagar, New Delhi110064.
2. Shri Vikram Bahl,
Son of late Shri Om Prakash Bahl,
Resident of DB28F, LIG Flats,
G8 Area Rajouri Garden,
Hari Nagar, New Delhi110064.
3. Shri Sumit Bahl,
Son of late Shri Om Prakash Bahl,
Resident of DB28F, LIG Flats,
G8 Area Rajouri Garden,
Hari Nagar, New Delhi110064.
4. Delhi Development Authority,
Vikas Sadan, INA, New Delhi.
Through its Vice Chairman.
.....Defendants.
Date of Institution: 3.10.2006
Arguments Heard on: 16.11.2009
Date of Decision: 10.12.2009
1
:J U D G M E N T :
This suit for declaration, cancellation of instrument,
recovery of possession and mesne profits / damages and
injunction has been filed by the plaintiff Shri Darshan Lal
against the defendant Smt. Neelam Behl. Briefly the facts
relevant to the disposal of the same are as under:
BRIEF FACTS
Plaintiff's Case:
The case of the plaintiff is stated that the defendants are legal heirs of his younger brother Shri Om Prakash Bahl, who had expired on 2nd December, 2004. It is pleaded that the plaintiff was allotted LIG Flats bearing No. DB28F, G8 Area, Rajouri Garden, Hari Nagar, New Delhi 110064 by Delhi Development Authority sometime in 1973/1974, and he made the requisite deposits with the Authority and received possession of the flat. According to the plaintiff Om Prakash Bahl was also a partner in the business being run at 6/65, Double Storeys, Tilak Nagar, New Delhi 110018 under the name and style of M/s. Shakti Store vide 2 partnership deed dated 18th March, 1977 and was retired from the said partnership business on close of 30th June, 1980 and settled his accounts vide deed of dissolution dated 1st July, 1980 and separated from the family and shifted to the flat of the plaintiff bearing LIG Flat No. DB28F, G8 Area, Rajouri Garden, Hari Nagar, New Delhi110064 in the year 1980. He was allowed to use and occupy the flat as a licensee without creating any right, title or interest in his favour in the said flat, on account of cordial relations between the plaintiff and his brother Shri Om Prakash Bahl, and continued to occupy the flat in the said capacity till his death on 2nd December 2004. It is stated that there was an oral understanding between the plaintiff and his brother deceased Om Prakash Bahl that he would deposit installments with Delhi Development authority on behalf of the plaintiff. The plaintiff came to know in April, 2006 that the deceased Om Prakash Bahl misused the confidence reposed in him and played mischief, fraud and forgery with the plaintiff and got the aforesaid flat transferred in his name from Delhi Development Authority on the basis of forged documents. On having knowledge of the same the 3 plaintiff sent notice dated 13th June, 2006 to the defendants, to which reply dated 27th June, 2006 was received on behalf of defendant no. 1. It is stated that he had never transferred the aforesaid flat Om Prakash Bahl or executed any documents in his favour. According to the plaintiff he allowed Om Prakash Bhal to use the same on account of cordial relations. It is pleaded that the mutation and transfer of the aforesaid flat obtained by the deceased Om Prakash Bahl in his favour from Delhi Development Authority by committing fraud and forgery is void or voidable and written documents to this effect issued by the Authority in his favour are liable to be adjudged as such and cancelled to prevent serious injury to the plaintiff. It is stated that the aforesaid flat could fetch a monthly sum of Rs. 5000/ in the market for its use and occupation on 1st July, 2006, and defendants nos. 1 to 3 are liable to pay the said monthly sum to the plaintiff till restoration of vacant possession of the flat to him. According to the plaintiff defendants nos. 1 to 3 are likely to alienate or part with possession of the aforesaid flat in order to defeat or frustrate the object of the decree that may be passed against them with 4 regard to the aforesaid flat, if they are not prevented from doing so. It is stated that after the knowledge of the fraud and forgery committed by Om Parkasdh Bahl in April, 2006, the plaintiff had issued notice dated 13th June, 2006 to the defendants, but the defendants failed to comply with the said notice and defendants nos. 1 to 3 raised as vexatious claim over the flat. According to the plaintiff, that the requisite notice under section 53B of the Delhi Development Act, 1957 has been given to defendant no. 4 before filing of the suit on 13th June, 2006 and a period of two months has elapsed since then. Defendant's Case:
The defendant no. 1, 2 & 3 have filed a detail written statement raising the preliminary objection with regard to locus standi of plaintiff to file the present suit stating that the plaintiff is neither owner of the suit property nor he has any concern, title or interest in the same. It is stated that the suit of the plaintiff has been filed without any cause of action and that the plaintiff has not come with clean hands and has suppressed and concealed the material facts from the Court and is, 5 therefore not entitled for any relief. According to the defendants the suit of the plaintiff is bad for nonjoinder and misjoinder of the parties. It is stated that the plaintiff has filed this suit only as a counterblast and to harass and blackmail the defendants since the defendants have already filed the suit for permanent injunction against the plaintiff in respect of the property bearing No. 24/26A, Tilak Nagar, New Delhi measuring 59 Sq.yds. Out of 159 Sq.yds. consisting of boundary wall, latrinecumbathroom stairs, kitchen, shed etc. constructed on the plot of which the defendants are the owners and landlords. It is pleaded that the defendants have also served the notices upon the plaintiff in respect of the shop No. 6/65, Tilak Nagar, New Delhi. It is also pleaded that the suit has not been properly valued for the purposes of court fee and jurisdiction and the suit of the plaintiff is barred by limitation as the defendants are in possession of the suit property since the date of handing over the possession of the flat by DDA without any hindrance and objection by the plaintiff and is liable to be dismissed.
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It is stated that the plaintiff and his younger brother Late Shri Om Prakash Bahl were running joint business and also residing in a joint family, when both the brothers had applied for DDA flat and deposited the amount from the earning of joint business. According to the defendants the application for allotment was filed in the name of Shri Darshan Bahl being the elder brother and the flat was allotted and amount was deposited by Shri Om Prakash Bahl from his joint business earning and after allotment the installments were also deposited by Shri Om Prakash Bahl and possession of the flat was received by him, but the documents were in the name of Sh. Darshan Lal. It is denied that Sh. Om Prakash Bahl had retired and partnership deed was dissolved. It is also denied that Sh. Om Prakash Bahl settled his accounts vide alleged deed of dissolution dated 01071980 and he separated from the joint family and shifted to the flat in suit. It is submitted that Sh. Om Prakash Bahl occupied and took the possession of the flat from DDA and he paid the consideration to the plaintiff and only then, the plaintiff had given up his right and title in 7 the flat. It is stated that Sh. Om Prakash Bahl deposited the installments of the flat in the office of the DDA in the name of Sh. Darshan Lal as the flat was allotted in the name of Sh. Darshan Lal in the year 1981 to 1985 in the name of Sh. Darshan Lal. Sh. Om Prakash Bahl requested the plaintiff to get transfer the flat in his name. The plaintiff demanded some amount and agreed to give a No Objection to transfer the flat in the name of Shri Om Prakash Bahl. Sh. Om Prakash Bahl paid the amount to Shri Darshan Lal and the plaintiff filed an application dated 23.05.1985 alongwith documents in the office of DDA to transfer the flat in suit in the name of his younger brother Shri Om Prakash Bahl. The DDA acknowledged the application of the plaintiff vide its letter dated 08.07.1985 only after which it transferred the flat in the name of Shri Om Prakash vide letter 20.03.1986 and Sh. Darshan Lal was informed regarding transfer of the flat vide this letter and Sh. Om Prakash Bahl became the absolute owner and landlord/allottee of the flat in suit. Thereafter Sh. Om Prakash Bahl paid/deposited the installments of the flat in his name. Sh. Om Prakash Bahl expired on 02.12.2004 and after 8 his death the defendants became the coowners and landlords of the flat in suit. It is denied that there was any oral understanding between the plaintiff and his brother Late Sh. Om Prakash Bahl to deposit the installment with DDA on behalf of the plaintiff. According to the defendants the flat was transferred with the consent of the plaintiff and thereafter Sh. Om Prakash Bahl deposited the remaining installments of the flat in his name. It is denied that the plaintiff only came to know in April 2006, the deceased Sh. Om Prakash Behl misused the confidence reposed in him and played mischief fraud and forgery with the plaintiff and got the aforesaid flat transferred in his name from DDA on the basis of forged documents. According to the defendants the letters issued by DDA to the plaintiff dated 08.07.85 and 20.03.86 clearly show that the flat was transferred on the application of the plaintiff and plaintiff received the said letters as acknowledgment.
The defendant no. 4 has also filed written statement stating that the suit is not maintainable for want of notice under Section 53B of DD Act. It is pleaded that the LIG flat no. 28 F, BlockDB, G8 area Rajouri Garden through the 9 computerized draw held on 17.2.81 and the allotment / demand letter was issued on 7.5.81 and the possession of the flat was given on 17.1.81 to the plaintiff. It is further pleaded that the plaintiff vide application dated 8.7.85 alongwith various documents had requested to transfer the flat in question in favour of his younger brother Om Parkash and after examination of the said documents the flat was transferred by the DDA in the name of Om Parkash on 20.3.86. Thereafter, the plaintiff vide letter dated 10.2.99 requested the DDA to withdraw the transfer of ownership granted to Om Parkash after which the DDA vide letter dated 18.8.00 and 23.1.2001 asked the plaintiff to visit the office of DDA, but he did not appear. According to the defendant no. 4 on 29.3.2006 Smt. Neelam Bhel has applied for mutation of the flat in her name by furnishing requisite documents. She has also applied for conversion of the flat from lease hold to free hold, but due to dispute among the parties neither the mutation nor the conversion was allowed.
10 ISSUES FRAMED:
On the basis of the pleadings of the parties the following issues were framed on 25.7.2007 by the Ld. predecessor of this court :
1. Whether the plaintiff is entitled for decree of declaration in respect of the suit property i.e. LIG Flat bearing no.
DB28F, G8 Area, Rajouri Garden, Hari Nagar, New Delhi? (OPP)
2. Whether the plaintiff is entitled for decree of possession in respect of the suit property? (OPP)
3. Whether the plaintiff is entitled for an amount of Rs.5,15,530/ on account of mesne profit for use of suit property at the rate of Rs.5,000/ per month commencing from July 2006 to September 2006 and also future damage? (OPP)
4. Whether the plaintiff is entitled for decree of perpetual injunction in respect of the suit property? (OPP)
5. Whether the transfer of suit property in favour of deceased Om Parkash is void or voidable on the basis of documents submitted by him. If so, to its effects ? (OPP)
6. Whether the suit is not maintainable for want of legal, valid and proper notice under Section 53B of DD Act?
(OPD 4)
7. Whether the suit is not properly valued for purpose of Court Fees and jurisdiction? (OPD 1 to 3) 11
8. Whether the suit of the plaintiff is barred by limitation as defendants have been in possession of the suit property since the date of handing over the possession of the flat by the DDA? (OPD 1 to 3) EVIDENCE In support of his case the plaintiff has examined himself as sole witness and has corroborated what he has stated in the plaint. He also placed on record the copy of notice dated 13.6.2006 and its original postal receipts and acknowledgment, which are Ex.PW1/1 and Ex.PW1/2 and the original reply dated 27.6.2006 received from Sh. Rohtash Singh Advocate which is Ex.PW1/3.
In rebuttal the defendant no.1 has examined herself as D1W1. She has also placed on record various documents signed by Om Parkash Behl which are Ex.D1W1/1 to D1W1/12 and the receipts of installments deposited by her husband Om Parkash Bhel in the DDA are Ex.D1W1/13 to D1W1/62.
The defendants have also examined D1W2 Jaswant Rai Bhel and D1W3 Vijay Manchanda who have corroborated 12 and supported the case of the defendant no.1.
The defendant DDA has examined one Balbir Singh, Assistant Director (LAB Housing, DDA) as D4W1 who has in his examination in chief by way of affidavit corroborated what has been earlier stated in the written statement.
D1W4 Sh. S. P. Singh, Examiner of Questioned Document has in his examination in chief by way of affidavit proved his report which is Ex.D1W4/1. He has placed on record the various annexures to his report which are Ex.D1W4/2.
FINDINGS:
I have heard the arguments advanced before me by the counsels for both the parties and have gone through the records of the case. My findings on the various issues are as under:
Issue no.6 Whether the suit is not maintainable for want of legal, valid and proper notice under Section 53B of DD Act?
Onus of proving this issue was upon the defendant no.4 who submits that the suit is not maintainable against it for 13 want of valid and proper notice under Section 53B of the DD Act. In order to discharge the onus upon them the DDA has examined one Balbir Singh, AD (Housing) DDA, Vikas Sadan, New Delhi as D4W1 who has in his examination stated that no prior notice has been given to the department under Section 53 of the DD Act and the suit of the plaintiff being for declaration, cancellation of instruments and recovery of the possession is not maintainable. The plaintiff has examined himself as his sole witness and in his examination in chief by way of affidavit he has testified that the requisite notice under Section 53B of the DD Act has been given by him to the DDA on 13.6.2006 before filing of the suit and the present suit was filed only after the expiry of the statutory period. Copy of the said notice has neither been placed on record nor exhibited or proved by the plaintiff alongwith the proof of dispatch of the aforesaid notice. The witness of the defendant/ DDA however, in his cross examination admitted the mutation of the property in the name of the defendant no.1 and its conversion could not be effected on account of the fact that the plaintiff has served upon them a legal notice. This being so, the objection raised by the DDA is 14 devoid of merit and the issue is hereby decided in favour of the plaintiff.
Issue no.7 Whether the suit is not properly valued for purpose of Court Fees and jurisdiction?
Onus of proving this issue was upon the defendants no. 1 to 3. The defendant no.1 Neelam Behl has examined herself as D1W1 and in her examination in chief by way of affidavit she has specifically stated that this court will have no jurisdiction to entertain the present suit since the value of the suit property is Rs.25 lacs and the court fees filed by the plaintiff who is not in possession of the aforesaid flat is deficient. In her crossexamination she has testifed that the value of the flat as quantified by her being Rs.25 lacs is on the basis of hearsay as similar properties in the area are stated to have been sold for Rs.25 lacs. She has denied that the value of the flat in question is Rs.5 lacs only. She has, however, not placed on record any material to show that similar properties in the area are being sold at Rs.25 lacs. Therefore, under these circumstances, I hereby hold that the defendants have not been 15 able to prove and substantiate the allegations of under valuation by the plaintiff and also that on the date of filing of the suit the value of the flat in question was Rs.25 lacs as claimed by them. Issue is accordingly decided in favour of the plaintiff and against the defendants no. 1 to 3. Issue no.8 Whether the suit of the plaintiff is barred by limitation as defendants have been in possession of the suit property since the date of handing over the possession of the flat by the DDA?
Onus of proving this issue was upon the defendant no.1 to 3. The case of the defendants no.1 to 3 is that they had been in possession of the flat in question ever since the handing over of the same to them by the DDA in the year 1981. In Para 8 of the examination in chief D1W1 has stated that Om Prakash Behl had occupied and taken possession of the flat from DDA and paid the consideration to the plaintiff who had given up his rights and title in the flat in question and her husband Sh. Om Prakash Behl deposited the installments of the flat in the office of the DDA in the name of Darshan Lal as the flat was allotted 16 in the name of Darshan Lal in the year 1981 whose possession had been taken by Om Prakash. According to her, Om Prakash continued to deposit the installments from 198185 and also therefore, requested Darshan Lal to transfer the flat in his name. She has further deposed that the plaintiff demanded certain amount and agreed to give NOC to transfer the flat in the name of Om Prakash which amount was paid pursuant to which he filed an application dated 23.5.1985 alongwith documents in the office of DDA to transfer the flat in the name of his younger brother Om Prakash which application of the plaintiff was acknowledged by the DDA vide its letter dated 8.7.1985 and thereafter, the DDA transferred the flat in the name of Om Prakash on 20.3.1986 and Darshan Lal was informed regarding the transfer of the flat which letter is placed on record. It is specifically deposed that the cause of action if any arose when the DDA transferred the flat in the name of Om Prakash vide letter dated 20.3.1986 and thereafter when the electricity connection was was sanctioned in the name of Om Prakash vide Ex.D1W1/57 and the flat was mutated in the name of Om Prakash and the house tax was being paid by 17 them. It is argued that present suit has been deliberately filed after the death of Om Prakash Behl in the year 2006 on false grounds with the sole motive to harass and blackmail his widow and children.
I have gone through the testimony of PW1 who has in his crossexamination admitted that the flat was allotted to him in the year 1978 and was booked by him in the year 1972 or 1974 and at the time of booking the flat in question he himself and his brother Om Prakash were residing jointly and having common business. He has, however, denied that the suggestion regarding the possession of the flat by Om Prakash Behl when he started making the payment towards the same or that he had received an amount of Rs.30,000/ for sale consideration of the aforesaid flat. He has also denied having filed any document such as Affidavit, Indemnity Bond, Undertaking etc. for transfer of the said flat in the name of Om Prakash Behl and has denied that he has received any letter dated 8.7.1985 and 20.3.1986 regarding the transfer of the flat in question in the name of his brother Om Prakash. The plaintiff Darshan Lal has denied his signatures on the aforesaid 18 documents i.e. letter dated 23.5.1985 which is Ex.PW1/D1; letter dated 9.7.1985 which is Ex.PW1/D3; his affidavit filed alongwith the aforesaid letter dated 9.7.1985 which is Ex.PW1/D4; Indemnity Bond which is Ex.PW1/D5; declaration to be made before the Registering Authority which is Ex.PW1/D6 and the accompanying affidavit alongwith the declaration which is Ex.PW1/D7 & Ex.PW1/D8. He has further denied his signatures on the letter written by him to the Assistant Director (LAB) Housing dated 16.10.1985 allegedly submitting the requisite documents and reiterating his request that flat no. DB28F, G8 Area, Rajouri Garden, Hari Nagar, New Delhi may be transferred in the name of his younger brother Om Prakash Behl. In view of the aforesaid denial by the plaintiff, all the documents were got examined from the handwriting and finger print expert who has proved his report as Ex.D1W4/1 wherein it has been opined by the Examiner that the signatures of Darshan Lal which he has denied on the aforesaid documents had been compared with the specimen signatures in English which Specimen Signatures had been 19 taken in the court and had been found to have been written in the hand writing of the same person (i.e. Darshan Lal). The said report has been duly proved by the Examiner Sh. S.P. Singh who has been examined as D1W4. The expert has been subjected to a lengthy crossexamination by the plaintiff but he had stood by the credence of his report there being no material contradiction. Therefore, the signatures of the plaintiff Darshan Lal on the letter written by him to the DDA for transfer of the flat in the name of Om Prakash accompanied by his Affidavit, Indemnity Bond etc. has been proved.
Further, the suit of the plaintiff for cancellation of documents has been filed deliberately not when the property in question was transferred in the name of Om Prakash Behl but only after the husband of the defendant no.1 Sh. Om Prakash Behl expired. The Limitation provided under the Limitation Act 1963 is three years and for possession of the aforesaid property is 12 years which suit have been filed after more than 20 years of the execution of documents and 25 years of the alleged adverse possession for which no explanation is forthcoming and the plaintiff is therefore, guilt of latches. 20
In view of the above, I hereby hold that the suit of the plaintiff is beyond the period of limitation. Issue is decided in favour of the defendants and against the plaintiff. Issue no.1 Whether the plaintiff is entitled for decree of declaration in respect of the suit property i.e. LIG Flat bearing no. DB28F, G8 Area, Rajouri Garden, Hari Nagar, New Delhi?
Issue no.2 Whether the plaintiff is entitled for decree of possession in respect of the suit property? Issue no.3 Whether the plaintiff is entitled for an amount of Rs.5,15,530/ on account of mesne profit for use of suit property at the rate of Rs.5,000/ per month commencing from July 2006 to September 2006 and also future damage?
Issue no.4 Whether the plaintiff is entitled for decree of perpetual injunction in respect of the suit property?
Issue No. 5 Whether the transfer of suit property in favour of deceased Om Parkash is void or voidable on the basis of documents submitted by him. If so, to its effects ?
All the issues are clubbed together for the same of convenience involving common discussion. Onus of proving all the issues was upon the plaintiff. The plaintiff Darshan Lal 21 has examined himself as his sole witness wherein he has corroborated what he has earlier stated in the main plaint. The defendant no.1 Neelam Behl has also examined herself as D1W1 wherein she has corroborated her pleadings in the written statement in toto. She has further examined one Jaswant Lal Behl her nephew being the son of her brother in law as D1W2 who has in his examination in chief testified that the plaintiff who is his uncle (Tau) and is the younger brother of Om Prakash Behl being the deceased husband of the defendant no. 1, had been staying together initially and running joint business. According to him, the property bearing no. 24/26A, Tilak Nagar, New Delhi was purchased and while the documents were being executed in the name of Darshan Lal being the elder brother, though the amount was being paid from jointly and joint earning, it was agreed between the brothers that when the sale deed would be executed in the name of Darshan Lal, he would execute a sale deed in respect of 59 sq. yards plot in the name of Om Prakash Behl in respect of which Darshan Lal had also executed an agreement. According to the said witness, Om Prakash Behl was in 22 possession of the plot measuring 50 sq. yards of house no. 24/26A, Tilak Nagar, New Delhi out of plot measuring 159 sq. yards till his death and thereafter, the defendants were in possession but the plaintiff had taken forcible possession during the pendency of the case and a case for possession and specific performance and stay is pending against Darshan Lal in another court. He has further stated that there was a family settlement between the brother through their father on 25.11.1998 and it was agreed between them that Darshan Lal Behl shall pay Rs.60,000/ to Om Prakash Behl regarding dispute of the house no. 24/26A, Tilak Nagar, New Delhi and a document was also executed. However, in so far as the present flat is concerned, the said witness has testifed that Darshan Lal Behl and Om Prakash Behl got registered the flat from joint earning as both were running their joint business but later on Darshan Lal got transferred the same in the name of Om Prakash by filing an application and documents in the office of DDA and thereafter, the defendant Om Prakash Behl had paid the remaining installments and had become the absolute owner thereof.
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Further Vijay Manchanda the real brother of the defendant no.1 and maternal uncle of defendant no.2 and 3, has also been examined as D1W3 who has in his testimony stated that the plaintiff after the death of his brother Om Prakash Behl had become dishonest and in order to cause harassment to his widow and his children, filed the present suit only to grab the flat in question.
I have duly considered the testimonies of D1W2 Jaswant Rai Behl the real nephew of both the plaintiff and defendant no.1 and also the testimony of D1W3 Vijay Manchanda the real brother of the defendant no.1. In their testimonies both the said witnesses have deposed not only on the aspects pertaining to the property in dispute before this court but also with regard to other properties. It may be clarified that since the dispute before this court is only pertaining to the flat bearing no. DB28F, LIG Flat, Hari Nagar, New Delhi, therefore, the testimonies of the said witnesses pertaining to the other properties which are not relevant in the present case are being ignored and no observations are being made in view of the fact that the dispute 24 pertaining to the other properties is pending before the court of competent jurisdiction.
DDA has also examined Balbir Singh, Assistant Director (Housing) as their witness who has placed on record the various documents pertaining to the transfer of the flat in the name of Om Prakash which are as under:
i) Affidavit from Transferor (Darshan Lal)
ii) Affidavit from Transferee (Om Prakash)
iii) Indemnity Bond from Transferor (Darshan Lal)
iv) Indemnity Bond from Transferor (Om Prakash)
v) Undertaking on behalf of Transferee (Om Prakash)
vi) Declaration (PartI) on behalf of the Transferor (Darshan Lal)
vii) Declaration (PartII) on behalf of the Transferee (Om Prakash Lal)
viii) Affidavit on behalf of transferor (Darshan lal)
ix) Affidavit on behalf of Transferee (Om Prakash) The witness has further testified that it was only after examination of the documents that the DDA vide letter dated 20.3.1986 intimated the plaintiff Darshan Lal that the flat referred to in suit has been transferred in the name of his real brother Om Prakash on the basis of the documents furnished by 25 him. He has further deposed that the plaintiff vide letter dated 10.2.1999 made a request to withdraw the transfer of ownership granted to Om Prakash in response to which the DDA vide letter dated 18.8.2000 and 23.1.2001 asked the plaintiff to attend their office. Later, Smt. Neelam Behl the defendant no.1 vide application dated 29.3.2006 applied for mutation of flat in her name by furnishing the required documents and also applied for conversion of flat from lease hold to free hold but since a legal notice was received from the plaintiff and on account of the dispute between the plaintiff and the defendant no.1 to 3, neither the mutation nor conversion was permitted.
In so far as the documents executed by Om Prakash are concerned the same have not been disputed by the defendants no.1 to 3 but in so far as Darshan Lal is concerned he has disputed having executed the same and therefore, under these circumstances, this court permitted the examination of the aforesaid documents through the fingerprint and handwriting expert. Sh. S.P. Singh S/o Sh. R.P. Singh Examiner of the Questioned Documents has given his detailed 26 report running into 10 pages which is Ex.D1W4/1 bearing his signatures on all the pages alongwith photo enlargement of the disputed, admitted and specimen signatures. The said witness has proved that the questioned documents were pertaining to the original record of the DDA which had been sent for examination on the basis of which he has given the report, photocopies of which are already on record. It is evident from the record that the said report has been given by the Examiner only after comparing the specimen signatures of Darshan Lal taken in the court with the original documents produced by the officials of the DDA from its record. According to the expert the signatures present on the documents present on the record of the DDA which are Affidavit of Darshan Lal, Indemnity Bond of Darshan Lal, Declaration (PartI) of Darshan Lal and second affidavit in respect of the declaration of Darshan Lal, all bear his signatures.
This court has personally compared the signatures of Darshan Lal present on the documents filed before the DDA and the subsequent signatures made by him in the court (duly enlarged photos of which are present on record) and it is 27 evident that they appear to have been made by the same person. The report of the handwriting expert confirms the aforesaid and there is no reason to doubt the authenticity and correctness of the aforesaid report. Any objection with regard to the correctness of the said report is unfounded and the conclusion of the handwriting expert S.P. Singh cannot be doubted.
The plaintiff had also filed an application under Section 151 CPC and Section 73 of the Indian Evidence Act seeking permission to examine another handwriting expert in rebuttal and vide a detailed order dated 27.7.2009 this court has disallowed the said application finding no merit in the same since the expert S.P. Singh had been appointed by this court out of the list of names so provided by the plaintiff himself and thereafter, no objection were filed to the aforesaid report of the expert. Even otherwise, the Examiner/ handwriting expert has been subjected to a detailed crossexamination and he stood by his report. This being so, I hereby hold that the plaintiffs himself having filed the documents before the DDA for transferring the flat in question in the name of his younger brother Om Prakash the husband of the defendant no. 1 and 28 father of defendant no.2 & 3, is estopped from taking a contrary stand. He has in his crossexamination evaded to give direct answers on the aspect of the execution of these documents. The witness from the DDA has produced the original documents which have been got examined from the Expert who has proved the execution of the same by the plaintiff only after which the property in question was transferred in the name of Om Prakash Behl, an aspect which now stands conclusively proved. The suit it appears has been deliberately and malafidely filed at this belated stage after the death of Om Prakash and no explanation is forthcoming for this delay.
In view of the aforesaid, I hereby hold that the plaintiff is not entitled to the relief of of declaration in respect of the suit property bearing no. DB28F, G8 Area, Rajouri Garden, Hari Nagar, New Delhi110064 and he is not entitled to the decree of possession nor is he entitled to recovery of Rs.5,15,530/ on account of mesne profit for use use of the suit property @ Rs.5,000/ per month. Further, I hold that the plaintiff is not entitled to the decree of perpetual injunction as 29 asked for in the plaint. Issues are decided against the plaintiff and in favour of the defendants.
Relief:
In view of my findings with regard to the various issues, I hereby hold that the the plaintiff is not entitled to the relief of of declaration in respect of the suit property bearing no. DB28F, G8 Area, Rajouri Garden, Hari Nagar, New Delhi110064 and he is not entitled to the decree of possession nor is he entitled to recovery of Rs.5,15,530/ on account of mesne profit for use use of the suit property @ Rs.5,000/ per month. Further, I hold that the plaintiff is not entitled to the decree of perpetual injunction as asked for in the plaint.
Suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 10.12.2009 Addl. District Judge: Delhi 30 Darshan Lal Vs. Neelam Behl Suit No. 98/2006 10.12.2009 Present: None for the plaintiff.
Sh. Sumit Behl, son of the defendant in person. Sh. S.D. Sharma, advocate for the DDA.
Vide my separate detailed order dictated and announced in the open court but not yet typed, the suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
(Dr. Kamini Lau) ADJ: DELHI/ 10.12.2009 31