Delhi District Court
Raman Birla & Ors. V. Raj Rani & Ors vs Smt. Raj Rani on 24 October, 2019
Raman Birla & Ors. V. Raj Rani & Ors.
&
Raj Rani V. Raman Birla & Ors.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 264/2018
UNIQUE CASE ID NO.: 610664/16
IN THE MATTER OF :
1.Sh. Raman Birla S/o Late Sh. Devki Nandan
2. Smt. Kailash Devi Widow of Late Sh. Devki Nandan Both R/o 7/67, Geeta Colony, Delhi110031.
3. Smt. Sangeeta Bhola Alias Uma W/o Sh. Raj Kumar D/o Sh. Devki Nandan R/o 6/7, G4, Vaishali, Ghaziabad, U.P.
4. Smt. Sanyogita Gulani W/o Sh. Deepak Gulani D/o Sh. Devki Nandan R/o B25, L.I.G. Flats Katwaria Sarai, Qutab Enclave, New Delhi.
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All through their duly constituted General Power of Attorney Sh. Dilshad Rai S/o Sh. Gulshan Rai R/o A3/17, Krishna Nagar, Delhi110051. ....Plaintiffs VERSUS
1. Smt. Raj Rani W/o Late Sh. Om Prakash
2. Smt. Ranjana Arora W/o Sh. Vinod Arora Both R/o 222, Dr. Mukherjee Nagar, Delhi110009.
3. Smt. Ganga Juneja W/o Sh. Devender Juneja R/o 196/7, Shri Ram Nagar, Shahdara, Delhi110032.
4. Smt. Yamuna Kapoor W/o Sh. Chander Kapoor R/o H. No. 1112, BlockB, Nehru Vihar, Delhi110054.
5. Smt. Radha Arora W/o Sh. Ashok Arora R/o 25, Ronak Pura, Masjid Wali Gali, Railway Road, Merut.
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6. Smt. Chanchal Bajaj Widow of Sh. Mangat Ram Bajaj daughter in law of Smt. Darshna.
7. Ms. Tanya Bajaj D/o Late Sh. Mangat Ram Bajaj both R/o 2235/1, Gali No.9, Gandhi Nagar, Ludhiana, Punjab.
8. Delhi Development Authority, Through its Vice Chairman At Vikas Sadan, INA, New Delhi. ....Defendants AND SUIT NO.: 265/2018 UNIQUE CASE ID NO.: 612079/2016 IN THE MATTER OF : SMT. RAJ RANI ....COUNTERCLAIMANT V. SH. RAMAN BIRLA & ORS. ....NONCOUNTERCLAIMANT SUIT FOR PARTITION, DECLARATION, MANDATORY INJUNCTION AND PERMANENT INJUNCTION Suit Nos. 264/2018 & 265/2018 Page 3 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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Date of institution of the Suit : 25/10/2004 Date on which Judgment was reserved : 23/10/2019 Date of Judgment : 24/10/2019 :: J U D G M E N T ::
By way of present judgment, this court shall adjudicate upon suit for partition, declaration, mandatory injunction and permanent injunction filed by the plaintiffs against the defendants and also the counterclaim filed by defendant no. 1 against the plaintiffs.
CASE OF THE PLAINTIFFS AS PER PLAINT Succinctly, the necessary facts for just adjudication of the present suit, as stated in the plaint, are as under:
(a) The plaintiffs are the coowners of the property bearing municipal no. 222, Dr. Mukherjee Nagar, Delhi110009 to the extent of 2/3rd share in the said property, however, the plaintiffs have executed a General Power of Attorney in favour of Sh. Dilshad Rai, son of Sh. Gulshan Rai, R/o A3/17, Krishna Nagar, Delhi110051 and the powers to file, sign and verify the plaint, engage the counsel and to do all the acts, deeds and things for the prosecution of the present case were given to him.
(b) Late Sh. Tehal Ram @ Tala Ram and his forefathers were residing in Pakistan and were having several ancestral Suit Nos. 264/2018 & 265/2018 Page 4 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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properties such as one Haveli, one residential house and 8 murabbas of agricultural land at Kot Isha Shah, Jila Jhung Railway Station, Shah Nigdhar, which was located on the railway line of Lala Moosa to shore court in Pakistan.
(c) Sh. Tehal Ram alongwith his two sons namely Late Sh. Devki Nandan & Late Sh. Om Prakash and one daughter namely Late Smt. Darshana migrated to India at the time of partition of the country in the year 1947, leaving behind several valuable ancestral properties in Jhung, Pakistan. The wife of Sh. Tehal Ram had already expired in Pakistan. Prior to migration, Sh. Tehal Ram and Sh. Devki Nandan were engaged in the profession as agriculturist and after migration both Late Sh. Tehal Ram and Sh. Devki Nandan started the business of clearing and forwarding agents for MRF Tyres. The Plaintiff no.1 is the son, plaintiff no.2 is the widow and plaintiffs no. 3 and 4 are the daughters of Late Sh. Devki Nandan.
(d) After migration in the year 1947, Late Sh. Tehal Ram, Late Shri Devki Nandan and Late Sh. Om Prakash and Late Smt. Darshana occupied Quarter No. E165, Outram Lanes, Kingsway Camp, Delhi110009 and this quarter was allotted to all the four of them in lieu of the ancestral properties left over in Jhung, Pakistan at the time of migration to India and Sh. Devki Nandan started living in the said quarter being one of the coowners thereof alongwith Sh. Tehal Ram, Sh. Om Suit Nos. 264/2018 & 265/2018 Page 5 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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Prakash and Smt. Darshana.
(e) Late Sh. Tehal Ram got solemnized the marriage of his both sons namely Sh. Devki Nandan, Sh. Om Prakash and also Smt. Darshana at the same quarter bearing no. E165, Outram Lane, Kingsway Camp, Delhi110009 in the year 1954, 1958 and 1959 respectively.
(f) In the year 1954, Displaced Persons Compensation and Rehabilitation Act, 1954 came into force and Section 8 of the said Act provided that the displaced persons shall be paid of compensation pool the amount of net compensation determined under subSection (3) of Section (7) of the said Act as being payable to him.
(g) The Conveyance Deed in regard to the said quarter was duly executed by the President of India through concerned Officer of the department in the name of Sh. Tehal Ram (purchaser) being the head of the family against the ancestral properties left in Pakistan on dated 31.08.1962. The said Conveyance Deed was duly registered before the SubRegistrar Delhi on 03121962 as document no. 14078 in additional book no. 1 Vol. No. 860 on pages 295 to 300. In the said Conveyance Deed, it was specifically mentioned that Late Sh .Tehal Ram (Purchaser) did not pay a single penny towards the consideration amount i.e. cost of Rs.918/ of the said quarter and on the contrary, the amount of Rs.918/ was paid through the claim that belongs to all the four persons i.e. Sh.
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Tehal Ram, Sh. Devki Nandan, Sh. Om Prakash and Smt. Darshna.
(h) As per policy of Govt. of India, plot no. 222, Dr. Mukherjee Nagar, Delhi110009 was allotted in lieu of the quarter no. E 165, Outram Lanes, Kingsway Camp, Delhi110009. Resultantly, Late Sh. Tehal Ram, Late Sh. Devki Nandan, Sh. Om Prakash and Late Smt. Darshna became the joint owners/ coowners of the property no. 222, Dr. Mukherjee Nagar, Delhi110009. Government of India had only handed over the possession of vacant plot bearing no. 222, Dr. Mukherjee Nagar, Delhi110009 and the construction was raised from the funds from M/s. Tehal Ram & Sons, where only Late Sh. Tehal Ram and Late Sh. Devki Nandan worked for gains. The other son of Late Sh. Tehal Ram namely Late Sh. Om Prakash did not contribute even an inch in the business being carried under the name and style of M/s. Tehal Ram & Sons and was only engaged in doing petty jobs here and there and the incomes derived out of petty jobs were hardly sufficient to even meet his lust for liquor.
(i) Sh. Devki Nandan along with other family members started living in the property no. 222, Dr. Mukherjee Nagar, Delhi9 being one of the coowners thereof. In the year 197576, Shri Devki Nandan left behind some household goods and articles and locked his room in the property no. 222, Dr. Mukherjee Nagar, Delhi9 and started residing at Krishna Nagar, Delhi Suit Nos. 264/2018 & 265/2018 Page 7 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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110051 on account of some family dispute between the plaintiff no.2 and defendant no.1 and as such, Sh. Devki Nandan and plaintiffs allowed the defendants no. 1 & 2 to reside in the premises to the extent of his share except the locked room as licencee. However, it was agreed that they can use the said premises only for residence and shall handover the possession of the property to the extent that belongs to the plaintiffs as and when the same is required by plaintiffs. Sh. Tehal Ram expired on 24.09.1980 leaving behind his two sons namely Sh. Devki Nandan, Sh. Om Prakash and one daughter Smt. Darshana. Smt. Darshna relinquished/ released her share in favour of his elder brother Sh. Devki Nandan due to love and affection on 11.11.1980 and she expired in the year 1981 leaving behind three daughters i.e. defendants no. 3 to 5 and a son. Unfortunately, Mangat Ram, S/o Late Smt. Darshana also expired in the year 2004 leaving behind defendants no. 6 and 7 as his legal heirs. Sh. Om Prakash breathed his last in the year 1984 leaving behind Smt. Raj Rani (wife) and Smt. Ranjana Arora (Daughter) as his successors.
(j) In the month of January 1998, Sh. Devki Nandan along with the plaintiffs received an information from the close relatives that Smt. Raj Rani is trying to get the property bearing no. 222, Dr. Mukherjee Nagar, Delhi110009 in her name on the basis of some forged documents. Late Sh. Devki Nandan sent Suit Nos. 264/2018 & 265/2018 Page 8 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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a legal notice through his advocate to DDA requesting therein not to mutate the property in the name of Smt. Raj Rani and apart from that, the father of plaintiffs made several representations during his lifetime before DDA officials but of no consequence. Thereafter, Late Sh. Devki Nandan filed a civil suit for partition, recovery of damages and permanent injunction before the then Ld. District Judge, Delhi while Civil suit no. 298/98 and during the pendency of the said case, DDA officials were examined as witnesses who apprised the Hon'ble Court that the property in question has already been mutated in the name of Smt. Raj Rani vide orders dated 19.02.1998 and has been given free hold rights also it was further recalled that the mutation was carried on the basis of a Will alleged to have been executed by Late Shri Tehal Ram in favour of Smt. Raj Rani on 26.10.1973 and it was further called that it took 18 years to complete the proceedings of mutation in favour of Smt. Raj Rani by DDA. It was further recalled that no notice, prior to mutating the property, was given to any of the plaintiffs or Sh. Devki Nandan and the property has been mutated at the back of the plaintiffs and Late Sh. Devki Nandan without their knowledge.
(k) Smt. Raj Rani, her daughter Smt. Ranjana Arora and sonin law Sh. Vinod Arora filed a Written Statement dated 15.04.1998, therein alleged that Late Shri Tehal Ram had executed a Will on 26.10.1973 in favour of Smt. Raj Rani. In Suit Nos. 264/2018 & 265/2018 Page 9 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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the replication filed by Late Sh. Devki Nandan in the Civil Suit No. 298/98, it was categorically submitted that the Will is forged and fabricated one and is a sheer manipulation of the defendant (Smt. Raj Rani) to grab the property with malafide intentions and moreover, Sh. Tehal Ram never executed a Will even otherwise, he had no right or authority to execute any Will in respect of the said property. Several preliminary objections were taken and on the basis of the pleadings, 11 issues were framed by the Ld. Judge. During the pendency of the Suit no. 298/98, Shri Devki Nandan expired on 19.11.2001 and on application moved by the present plaintiffs, their names were allowed to be substituted in the memo of parties. The case no. 298/98 was decided by Sh. Amar Nath, the then Ld. ADJ, Delhi vide order dated 13.12.2003 and held that the Will in favour of Smt. Raj Rani has got no legal value until and unless the same was then proved as per law. The Ld. Judge had relied upon a judgment of Hon'ble Supreme Court of India reported in A.I.R.. 2001 SC 2802. As per observations made by Shri Amar Nath, the then Ld. ADJ, Delhi vide his orders dated 13.12.2003, the mutation effected by DDA does not hold good and the orders dated 19.02.1998 passed by the DDA officials in favour of Smt. Raj Rani are liable to be set aside.
(l) Smt. Raj Rani or any other defendant has not challenged the orders dated 13.12.2003 passed by Sh. Amar Nath, the then Suit Nos. 264/2018 & 265/2018 Page 10 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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Ld. ADJ, Delhi. The plaintiffs in order to get the mutation cancelled in favour of Smt. Raj Rani served the DDA through a legal notice from the office of Sh .Devinder Choudhary, Advocate vide legal notice dated 10.06.2004, which had been duly acknowledged by the DDA but of no consequence. Late Sh. Devki Nandan and the plaintiffs required the said property and as such, made request to defendants no. 1 and 2 to vacate the premises to the extent of 2/3rd share which belongs to the plaintiffs and also requested for partition of the property but the defendants no. 1 and 2 avoided the same on one ground or the other. Late Sh. Devki Nandan during his life time had served upon defendants no. 1 and 2 with the legal notices dated 20.01.1998 and 08.07.1998 and the defendants failed to refute, repudiate and deny the facts stated in the legal notices and in these backgrounds, not only in equity but also in law, the defendants no. 1 and 2 would be deemed to have admitted the facts stated in the said legal notices.
(m) The defendants failed to abide by the legal duties, the plaintiffs are constrained to approach the Court interalia seeking from this Court against the defendants no. 1 and 2 a decree possession by way of partition to the suit premises and to pass decree of mandatory injunction against the defendants no. 1 and 2 and to handover the peaceful vacant possession to the extent of 2/3rd share in the suit property by way of Suit Nos. 264/2018 & 265/2018 Page 11 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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partition to the plaintiffs and a decree of mandatory injunction against the defendant no. 8 to cancel the mutation done in favour of defendant no.1.
CASE OF THE DEFENDANTS NO. 1 & 2 AS PER THEIR JOINT WRITTEN STATEMENT AND COUNTER CLAIM Succinctly, the case of the Defendants No. 1 & 2 is as under:
(a) The plaintiffs have not come to this Court with clean hands as they have intentionally and deliberately suppressed the true, relevant and material facts from this Court not only with a view to mislead this Court but also to play fraud upon the defendants.
(b) Late Shri Tehal Ram, fatherinlaw of the plaintiff no.2 and defendant no.1 and grandfather of Plaintiffs no. 1, 3 and 4 and the defendant no.2, was the absolute and exclusive owner of property/ quarter no. E165, Outram Lane, Kingsway Camp, Delhi110009 vide duly registered Lease Deed and Conveyance Deed, both dated 31.08.1962 executed in his favour by the President of India. Accordingly, the said quarter was the self acquired property of Late Shri Tehal Ram.
(c) Sh. Tehal Ram had two sons namely (1) Shri Om Prakash, husband of defendant no.1 and father of defendant no.2 and (ii) Shri Devki Nandan, husband of plaintiff no.2 and father of plaintiffs no. 1, 3 and 4 and Suit Nos. 264/2018 & 265/2018 Page 12 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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one daughter namely Smt. Darshana, mother of defendants no.3 to 5, motherinlaw of defendant no.6, Smt. Amarjeet Kaur (Widow of the deceased son of Smt. Darshana), whose name has been wrongly mentioned as Smt. Chanchal Bajaj and grandmother of the defendant no. 7.
(d) During the life time of Late Shri Tehal Ram, his son Sh.
Devki Nandan, predecessors of the plaintiffs instead of looking after his father and other family members, including defendant no.1, left them sometime in the year 1958 and started residing separately from them, whereafter neither Shri Tehal Ram nor any of his family members ever visited the house of Shri Devki Nandan nor Shri Devki Nandan ever visited either the said quarter or the said property, except at the time of demise of his father. Under the redevelopment scheme of the area of Kingsway Camp, Delhi110009, plots were allotted in lieu of the quarters situated at Hudson Lines and Outram Lines, Kingsway Camp, Delhi110009 and accordingly, plot no. 222, situated at Dr. Mukherjee Nagar, Delhi110009 was allotted in lieu of the said quarter in the name of Sh. Tehal Ram.
(e) Sh. Tehal Ram expired on 24.09.1980 leaving behind a Will dated 26.10.1973 duly registered with the office of SubRegistrar Delhi as document no. 1565 in Additional Suit Nos. 264/2018 & 265/2018 Page 13 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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Book No.III, Volume No. 49 on page no. 161 on 30 th October 1973, whereby he bequeathed and devised the said quarter as well as the aforesaid plot, allotted in lieu of the said quarter to and in favour of his daughterin law i.e. the defendant no.1 absolutely and exclusively. However, during his life time, the said Sh. Tehal Ram raised construction on the said plot with the funds paid/ contributed by his son Shri Om Prakash i.e. husband of the defendant no.1. Thus, after the death of the said Shri Tehal Ram, the defendant no.1 became/ is the absolute and exclusive owner and in possession of the said plot of land and the superstructure raised thereon for the last more than 25 years continuously and without any interference or obstruction from any corner. The defendant no.1, the owner of the said property, also deposited the amount of installments in respect of the plot, underneath the said property, with the DDA i.e. defendant no. 8. Thereafter, the defendant no.1 applied for mutation of the said property in her name whereupon, the defendant no. 8 Authority effected the said mutation/ substitution in her name and intimated her about the same vide letter no. L7 (222)81/OSB/422, dated 19th February, 1998. Thus, the defendant no.1 has been in possession of the said property as the absolute and exclusive owner thereof.
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(f) The plaintiffs have neither any right, title or interest in respect of the said property nor any locus standi to file the present suit as plaintiffs do not even know the correct names of defendants no. 4 and 6, whose correct names are Smt. Jamna Kapoor and Smt. Amarjeet Kaur respectively. The present suit is bad for misjoinder of defendants no. 2 to 7. The present suit has been filed by the plaintiffs with malafide intention and ulterior motive with a view to grab the said property, which is owned by defendant no.1 absolutely and exclusively. No cause of action has arisen to the plaintiffs to file the present suit and hence, the plaint is liable to be rejected under Order 7 Rule 11 CPC.
(g) The plaintiffs in the garb of claiming the relief of partition, have claimed the relief of possession of their alleged share in the said property as they have never been in possession of any portion of the said property and therefore, the present suit is not properly valued for the purpose of court fee and jurisdiction as they ought to have valued the present suit for the said purpose at the market value of the said property, which is much more than Rs.40.00 Lakhs. This Court has no pecuniary jurisdiction to try and entertain the present suit.
(h) The alleged claims of the plaintiffs seeking partition of Suit Nos. 264/2018 & 265/2018 Page 15 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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the said property is highly barred by time.
(i) The present suit has not been signed, verified and filed by a competent person as the plaintiffs have allegedly appointed one Sh. Dilshad Rai as their Attorney for the said purpose but as per information of the defendants no. 1 and 2, the said Shri Dilshad Rai is a property Broker and is in the habit of filing such false, frivolous, baseless and vexatious suits for and on behalf of various persons as an Attorney with a view to grab properties of the rightful owners in collusion and connivance with such persons/ plaintiffs. The present suit is also bad for misjoinder of defendant no. 8.
(j) On merits, the contents of the plaint have been denied.
It is also denied that Sh. Devki Nandan got married in the year 1954, much less in the said quarter. In fact, he got married in the year 195657. It has been prayed to dismiss the present suit with compensatory costs, as provided under Section 35 of CPC.
(k) The Ld. Court of Shri Amar Nath, the then Ld. ADJ, Delhi, while dismissing the said suit of the plaintiffs, was not competent to give finding that upon the demise of Sh. Tehal Ram, the said property devolved upon his legal heirs in equal shares and accordingly, the said finding has no legal value and consequently, the same is null and void and not binding in law. However, in case Suit Nos. 264/2018 & 265/2018 Page 16 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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this Court is pleased to be of the view that the said finding has any legal force/ binding in law, the defendant no.1 is entitled to file a counterclaim to challenge the said findings of the Ld. Court by seeking a declaration to the said effect in accordance with law, particularly since the said suit was dismissed in favour of defendant no.1, but she could not file an appeal against the said dismissal order to challenge the said finding, as the same was not permissible in law. Hence, the defendant no.1 has filed the present counter claim, without prejudice to her aforesaid submission, praying that the said finding may be declared as null and void and further that it has no force/ binding in law against her.
CASE OF THE DEFENDANTS NO. 3, 4 & 5 AS PER THEIR JOINT WRITTEN STATEMENT Succinctly, the case of the defendants no. 3, 4 & 5 is as under:
(a) The present suit is not maintainable against the defendants no. 3 to 5 as their predecessor Smt. Darshna had no right, title or interest in respect of the suit property as father Shri Tehal Ram was the owner/ landlord of quarter no. E165, Outram Line, Kingsway Camp, Delhi by virtue of Lease Deed and Conveyance Deed, both executed on 31.08.1962 and registered with Suit Nos. 264/2018 & 265/2018 Page 17 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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the office of SubRegistrar, Delhi and since the said quarter was his selfacquired property, plot no. 222, Dr. Mukherjee Nagar, Delhi9 was allotted in lieu of his said quarter in his name under the redevelopment scheme of Kingsway Camp, Delhi, whereupon he raised construction of a house on the said plot with his own funds and the funds paid and contributed by his son Shri Om Prakash, husband of defendant no.1. Sh. Tehal Ram died on 24.09.1980 leaving behind a Will duly executed on 26.10.1973 and duly registered, whereby he bequeathed and devised the said property in favour of his daughterinlaw Smt. Raj Rani, defendant no.1. Thus, the defendant no.1 became the owner of the said property absolutely and exclusively by virtue of the said Will. Not only this, the defendant no.1 had been residing in the said property with her husband and his father/ her fatherinlaw since construction thereof without any interference or obstruction from any quarter and as owner and she had also been paying installments of the plot under the said property to the Government. The plaintiffs and/ or their predecessor Shri Devki Nandan appears to had forged and fabricated a Relinquishment Deed, alleged to have been executed by Smt. Darshna, predecessor of the defendants no. 3 to 5 and therefore, the defendants reserve their right to take Suit Nos. 264/2018 & 265/2018 Page 18 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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civil as well as criminal legal action against them for committing the said office. In view of the above facts, the plaintiffs are not entitled to any relief relating to property no. 222, Dr. Mukherjee Nagar, Delhi9, muchless for partition and/ or declaration to the effect that they are the coowners to the extent of 2/3rd share in the said property. The suit is barred by time and therefore, the same is not maintainable. No cause of action has arisen to the plaintiffs to file the above suit and therefore, it is liable to be rejected as provided under Order 7 Rule 11 CPC.
(b) Without prejudice to the preliminary objections no. 1 to 4, the above suit is not properly valued for the purposes of court fee and jurisdiction, as the value of the said property is more than Rs.40,00,000/, while the plaintiffs have allegedly affixed court fee at Rs.4,75,000/ by alleging that they are in possession of the said property, which allegation is false, baseless and frivolous, as it is only the defendant no.1 who is owner and in possession of the said property. This court has no jurisdiction to try the suit.
(c) On merits, the contents of the plaint have been denied and it has been submitted that defendant no.1 is the absolute & exclusive owner and in possession of the said property. Shri Dilshad Rai, Attorney has no personal Suit Nos. 264/2018 & 265/2018 Page 19 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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knowledge of the facts of the case and therefore, he has signed the suit to harass and blackmail the defendants. Sh. Devki Nandan migrated to India about 810 years after partition of the country. Sh. Devki Nandan got married in the year 195657 but he was not married in the quarter no. E165, Outram Line, Kingsway Camp, Delhi. Since only Shri Tehal Ram was the owner of quarter no. E165, Outram Line, Kingsway Camp, Delhi, plot underneath the property no. 222, Dr. Mukherjee Nagar, Delhi110009 was also owned by him, as the same was allotted in lieu of the said quarter and construction of the said property was raised by Shri Tehal Ram from his own funds as well as from the funds paid/ contributed by Shri Om Prakash. As per the knowledge of defendants no. 3 to 5, Shri Om Prakash never used to consume liquor. Shri Om Prakash breathed his last in the year 1989. It has been prayed to dismiss the suit with compensatory costs, as provided under Section 35 of CPC.
CASE OF THE DEFENDANTS NO. 6 & 7 AS PER THEIR JOINT WRITTEN STATEMENT Succinctly, the case of the defendants no. 6 and 7 is as under:
(a) The defendant no. 6 is the real mother and natural guardian of her minor daughter Miss Tanya Bajaj, the Suit Nos. 264/2018 & 265/2018 Page 20 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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defendant no. 7 and accordingly, she has signed the present Written Statement as such as well as for herself as defendant no. 6 has no interest adverse to that of the defendant no. 7.
(b) Almost same pleas have been taken by defendants no. 6 and 7 in their Written Statement as taken by defendants no. 3 to 5 in their Written Statement.
CASE OF DEFENDANT NO. 8 AS PER WRITTEN STATEMENT Succinctly, the case of the defendant no. 8 is as under:
(a) The present plaint is an abuse of process of law and is not maintainable against the defendant no. 8. The present plaint is bad for misjoinder of necessary parties and is liable to be dismissed as the defendant no. 8 has necessarily been impleaded in the array of defendants. No cause of action arisen in favour of the plaintiff and against the defendant no. 8 and the plaint is liable to be rejected under Order 7 Rule 11 CPC.
(b) The present plaint against defendant no. 8 is not maintainable as the same is barred by time qua the defendant no. 8 as the property in dispute is already mutated in favour of defendant no.1 on 19.02.1998. After the property was converted from lease hold to free hold, the Conveyance Deed was executed in favour of defendant no.1 by defendant no. 8 on 26.02.1999.
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(c) No notice under Section 53(b) DD Act has been served upon the defendant no. 8 before filing the present suit. The suit has not been properly valued for the purposes of Court fees and jurisdiction and the requisite Court fees has not been paid.
(d) On merits, the contents of the plaint have been denied and it has been submitted that as per records maintained by defendant no. 8, the plaintiffs are not the owners of the suit property and one Sh. Tahl Ram, S/o Sh. Bhawani Dass was the Lessee of the suit property, who died on 24.09.1980 after executing a registered Will in respect of the suit property in favour of his daughter inlaw Smt. Raj Rani, defendant no.1. Smt. Raj Rani, w/o Late Sh. Om Prakash applied for mutation of the said property in her name and as per policy of the defendant no.8, the said property was mutated in the name of Smt. Raj Rani on 26.02.1999. Sh. Dilshad Rai has no right to sign, verify and file the plaint on behalf of the plaintiffs. No valid Power of Attorney was ever executed by the plaintiffs in the name of Sh. Dilshad Rai.
(e) It has been admitted that a Conveyance Deed was executed and registered on 31.08.1962 in favour of Sh. Tahl Ram. Premium and compensation are two separate and independent issues and are being taken together by Suit Nos. 264/2018 & 265/2018 Page 22 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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the plaintiffs for ulterior motives and malafide intentions. Late Sh. Tahl Ram paid the premium and he alone was the registered allottee of the property in dispute. Sh. Tahl Ram had executed a registered Will in respect of the suit property in favour of defendant no.1. The property had already been mutated in favour of defendant no.1 on 19.02.1998 and the application filed by Sh. Devki Nandan was belated. The plaintiff had deliberately and intentionally not impleaded the defendant no. 8 in the array of parties. The defendant no. 8 is not aware of the judgment/ order passed by the Court of Sh. Amar Nath, the then Ld. ADJ, Delhi. The defendant no. 8 does not owe any duty to the plaintiffs and without prejudice to the rights of defendant no. 8, it is submitted that if ever there existed any right in favour of the plaintiffs, then the same is barred by the law of limitation now qua the defendant no. 8. The plaint is devoid of cause of action against the defendant no. 8. The territorial jurisdiction of this Court to decide the matter is not disputed. The suit has not been properly valued for the purposes of court fees and jurisdiction and requisite court fees has not been paid. It has been prayed to dismiss the present suit with heavy costs. REPLICATIONS AND ISSUES Plaintiff has filed the replications to the Written Suit Nos. 264/2018 & 265/2018 Page 23 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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Statements of defendants no. 1 & 2, defendants no. 3 to 5 and defendants no. 6 and 7 controverting the allegations/ contentions in the Written Statements of the aforesaid defendants and contents of the plaint have been reiterated and reaffirmed. The plaintiffs have also filed reply to the counterclaim and denied the contentions raised in the counterclaim.
From the pleadings of the parties, the following issues were framed vide order dated 12/09/2006: ISSUES (1) Whether the plaintiff has cause of action and locus standi to institute the present suit against the defendants, if not so, its effect? OPP (2) Whether the suit is bad for nonjoinder and misjoinder of defendant no. 2 to 7 and 8 as alleged in preliminary objection of written statement of defendant no.2? OPD (3) Whether the suit is signed and verified by a competent person on behalf of plaintiffs, if not so, its effect? OPP (4) Whether the suit is valued properly for the purposes of court fees and jurisdiction and the required court fees has been paid? OPP (5) Whether the defendant no.1 is absolute and exclusive owner in possession of the suit property? OPD1. (6) Whether the suit is barred by limitation as alleged in preliminary objection no. 3 of the written statement of Suit Nos. 264/2018 & 265/2018 Page 24 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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Defendants No. 3, 4 and 5? OPD 3, 4 & 5(7) Whether the plaintiffs are entitled to the decree of partition of the suit property? OPP (8) Whether the plaintiffs are entitled to the decree of declaration as claimed for in clause B of the prayer clause? OPP (9) Whether the plaintiffs are entitled to the decree of mandatory injunction as claimed for? OPP (10) Whether the plaintiffs are entitled to the decree of permanent injunction as claimed for? OPP (11) Relief.
From the pleadings of the parties, the following issues were framed in the counterclaim vide order dated 12/09/2006: ISSUES (1) Whether the counter claim of the plaintiff is barred by resjudicata as alleged in the preliminary objection No.3 in the written statement ? OPD.
(2) Whether the plaintiff is entitled to the relief claimed in the counter claim ? OPP.
(3) Relief.
EVIDENCE OF THE PLAINTIFFS & DEFENDANTS AND DOCUMENTS RELIED UPON BY THEM Plaintiffs, in order to prove their case, led plaintiff's evidence and got examined Sh. Dilshad Rai as PW1. PW1 has filed his Suit Nos. 264/2018 & 265/2018 Page 25 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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evidence by way of affidavit, wherein he reiterated and reaffirmed the contents of the plaint. PW1 in his testimony has relied upon the documents:
(i) Ex.PW1/1 is the General Power of Attorney.
(ii) Ex.PW1/2 is the Conveyance Deed in regard to quarter no. E 165, Outram Lane, Kingsway Camp, Delhi.
(iii) Ex.PW1/2A is the Lease Deed.
(iv) Ex.PW1/3 is the Site Plan. (v) Ex.PW1/4 is the Death Certificate of Sh. Tehal Ram. (vi) MarkA is the photocopy of Relinquishment Deed.
(vii) Ex.PW1/5 is the certified copy of the legal notice dated 22.04.1998.
(viii) Ex.PW1/6 is the Death Certificate of Sh. Devki Nandan.
(ix) Ex.PW1/7 is the certified copy of the judgment of the case no. 298/98 decided by Sh. Amar Nath, the then Ld. ADJ, Delhi.
(x) Ex.PW1/8 to Ex.PW1/10 are the certified copies of letters dated 14.06.1998, 25.09.1998 and 26.10.1998 written by Sh. Devki Nandan to DDA.
(xi) Ex.PW1/11 is the certified copy of legal notice dated 08.07.1998.
(xii) Ex.PW1/12 is the carbon copy of legal notice dated 10.06.2004.
(xiii) Ex.PW1/13 is the acknowledgement card.
During crossexamination of PW1 the Lease Deed and Suit Nos. 264/2018 & 265/2018 Page 26 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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Conveyance Deed were exhibited as Ex.PW1/DX.
The plaintiffs also examined Sh. Raman Birla as PW2, who has relied upon the following documents:
1. Photocopy of the Legal Notice got issued on 20.04.1998 is MarkA.
2. Photocopy of letter dated 06.04.1999 is MarkB.
3. Attested copy of letter dated 06.07.1998 is Ex.PW2/2.
On the other hand, the defendants have examined Smt. Raj Rani as DW1. DW1 has relied upon the following documents:
1. Ex.DW1/1 is the certified copy of Conveyance Deed dated 31.08.1962.
2. Ex.DW1/2 is the certified copy of Lease Deed dated 31.08.1962.
3. Ex.DW1/3 is the certified copy of Relinquishment Deed dated 31.08.1962.
4. Ex.DW1/4 is the certified copy of Legal Notice dated 23.07.1998.
5. Ex.DW1/5 is the certified copy of WS of defendants no. 1 & 2 in Suit No. 1/03.
6. Ex.DW1/6 is the certified copy of evidence of Devkinandan.
7. Ex.DW1/7 is the certified copy of letter dated 27.08.1998 issued by DDA to Devkinandan.
8. Ex.DW1/8 is the certified copy of evidence of Raman Birla in Suit No. 1/03.
9. Ex.DW1/9 is the certified copy of letter dated 14.10.1998 Suit Nos. 264/2018 & 265/2018 Page 27 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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issued by DDA to Devkinandan.
10. Ex.DW1/10 is the certified copy of Will dated 26.10.1973 executed by Sh. Tehla Ram.
The defendants have also examined Smt. Pushpa Vohra as DW2.
The defendant no. 8 has examined Sh. R.K. Sharma as D8W1, who has relied upon the following documents:
1. Mutation Letter dated 19.02.1998 is Ex.D8W1/1 and
2. Conveyance Deed dated 26.02.1999 is Ex.D8W1/2.
This Court heard final arguments, as advanced by Ld. Counsels for the parties. I have perused the material available on record.
ISSUE NO.3 (3) Whether the suit is signed and verified by a competent person on behalf of plaintiffs, if not so, its effect? OPP FINDINGS & CONCLUSIONS OF THE COURT The plaintiffs have relied upon the General Power of Attorney Ex.PW1/1. The Ex.PW1/1 is the certified copy of registered General Power of Attorney dated 27.11.2001 executed by the plaintiffs. The said General Power of Attorney is also supported by the plaintiff no.1 Sh. Raman Birla in his evidence Ex.PW2/A. The plaintiff no.1 has categorically stated in para no.3 of the evidence by way of affidavit that the plaintiff no.1 alongwith his mother Smt. Kailash Devi, sisters namely Ms. Sangeeta Bhola and Suit Nos. 264/2018 & 265/2018 Page 28 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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Ms. Sanyogita Gulani had executed the General Power of Attorney in favour of Sh. Dilshad Rai i.e. the Attorney holder. The defendants are not able to shake the testimonies of PW1 and PW2 on these aspects. Moreover, the perusal of the record reveals that Sh. Dilshad Rai, who is the Attorney of the present plaintiffs, was also the Attorney of predecessorininterest of the plaintiffs namely Sh. Devki Nandan. Sh. Dilshad had also given the letters to the DDA and the same are Ex.PW1/8 to Ex.PW1/10 and Ex.PW2/2. The said letters have been signed by the Attorney Sh. Dilshad Rai on behalf of Sh. Devki Nandan.
Considered from any viewpoint, the plaint has been signed and verified by a competent person on behalf of plaintiffs. Accordingly, the issue no. 3 is decided in favour of the plaintiffs and against the defendants.
ISSUES NO. 1 & 5 to 10, AS FRAMED IN THE SUIT AND ISSUES NO. 1 & 2, AS FRAMED IN THE COUNTERCLAIM ISSUES FRAMED IN SUIT (1) Whether the plaintiff has cause of action and locus standi to institute the present suit against the defendants, if not so, its effect? OPP (5) Whether the defendant no.1 is absolute and exclusive owner in possession of the suit property? OPD1 (6) Whether the suit is barred by limitation as alleged in preliminary objection no. 3 of the written statement of Defendants No. 3, 4 and 5? OPD 3, 4 & 5 Suit Nos. 264/2018 & 265/2018 Page 29 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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(7) Whether the plaintiffs are entitled to the decree of partition of the suit property? OPP (8) Whether the plaintiffs are entitled to the decree of declaration as claimed for in clause B of the prayer clause? OPP (9) Whether the plaintiffs are entitled to the decree of mandatory injunction as claimed for? OPP (10) Whether the plaintiffs are entitled to the decree of permanent injunction as claimed for? OPP ISSUES FRAMED IN COUNTERCLAIM (1) Whether the counter claim of the plaintiff is barred by resjudicata as alleged in the preliminary objection No.3 in the written statement ? OPD.
(2) Whether the plaintiff is entitled to the relief claimed in the counter claim ? OPP.
Issues no. 1 and 5 to 10, as framed in the suit and issues no. 1 & 2, as framed in the counterclaim are interlinked and interconnected to each other and accordingly, they are decided together.
FINDINGS AND CONCLUSIONS OF THE COURT The Ld. counsel for the plaintiffs has addressed the arguments that the suit property is the ancestral property basically on the following grounds:
(a) Conveyance Deed in regard to the quarter no. E165, Outram Lanes, Kingsway Camp, Delhi110009 was duly executed by the President of India through concerned Suit Nos. 264/2018 & 265/2018 Page 30 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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Officer of the department in the name of Sh. Tehal Ram (purchaser) being the head of the family against the ancestral properties left in Pakistan on dated 31.08.1962. In the said Conveyance Deed, it was specifically mentioned that Late Sh. Tehal Ram (Purchaser) did not pay a single penny towards the consideration amount i.e. cost of Rs.918/ of the said quarter and on the contrary, the amount of Rs.918/ was paid through the claim of compensation.
(b) The expression "purchaser" in the Conveyance Deed dated 31.08.1962 shall include "in addition to said Sh Tehal Ram his lawful heirs, successors, representative, assigns, transferees, lessees and any person or persons in occupation of the said property".
(c) As per policy of Govt. of India, plot no. 222, Dr. Mukherjee Nagar, Delhi110009 was allotted in lieu of the quarter no. E165, Outram Lanes, Kingsway Camp, Delhi110009. Resultantly, Late Sh. Tehal Ram, Late Sh. Devki Nandan, Sh. Om Prakash and Late Smt. Darshna became the joint owners/ coowners of the property no. 222, Dr. Mukherjee Nagar, Delhi110009. Government of India had only handedover the possession of vacant plot bearing no. 222, Dr. Mukherjee Nagar, Delhi110009.
The Plaintiffs have also pleaded and addressed the Suit Nos. 264/2018 & 265/2018 Page 31 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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arguments of "ancestral property" in the earlier Suit for Partition qua suit property filed by their predecessor in interest by Shri Devki Nandan and the same was continued by the Plaintiffs after the death of Shri Devki Nandan. The Ld. Court of ADJ had held that suit property was the property of Shri Tehal Ram @ Tala Ram i.e. Self acquired property vide Judgment dated 13.12.2003 and the said findings were not challenged in Appeal by the Plaintiffs, therefore, now by way of present suit the plaintiffs cannot be allowed to reagitate and readdress the said issue, which has attained finality between the parties in the earlier suit. One fails to understand why the Plaintiffs have filed the fresh suit and has not filed the Appeal, whereby, suit of the Plaintiff was dismissed although on the ground of nonjoinder of party. The plaintiffs are estopped from agitating against the findings which had put in rest the said issue.
The Plaintiffs have also raised the argument that the entire amount was paid through "compensation" while executing the conveyance deed of the property of Outram Lane. First of all, at the cost of repetition, in the earlier suit it was categorically held that the suit property is not ancestral property and said findings had attained finality as the Plaintiffs have not challenged the same by filing the Appeal. Secondly, it is well settled by the judgment 257 (2019) DLT 550 titled as Aarshiya Gulati (Minor) Thr. Next Friend & Ors. Vs. Kuldeep Singh Gulati & Ors. passed by Hon'ble High Court of Delhi that mere allotment of the property by Suit Nos. 264/2018 & 265/2018 Page 32 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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the Rehabilitation Department would not, by itself, mean that the same was acquired on the basis of ancestral property/ joint family property. The relevant portion of the said Judgment is also reproduced as under: "54. In the opinion of this Court, land granted to a displaced person under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is in the nature of a grant and does not retain the characteristics of properties left behind in Pakistan. A grant is always self acquired. In Pohla Singh alias Pohla Ram (D) by LRs and Others Vs. State of Punjab and Others, (2004) 6 SCC 126, the Supreme Court held:―"This clearly shows that a displaced person on account of his migration to India after partition did not get the same property which he had in the area which became Pakistan, but he got monetary compensation though it was possible that some property out of compensation pool could be sold or transferred to him out of the said compensation amount. The consequence is that the land which Dhanna Singh got in village Budhlada, in District Bhatinda is not the same land which he had got by way of military grant in Sind. It is an altogether different land purchased out of compensation amount which was payable to him or could have been transferred to him by setting off the valuation of the property against the compensation payable to him".
55. 'Grant' according to Mulla on Hindu Law, 21st Edition, para 228 is : "228. Separate Property Property acquired in any of the following ways is the separate property of the acquirer, it is called ―"SelfAcquired", and is subject to the incidents mentioned in Para 222 above:
1) xxxxx Suit Nos. 264/2018 & 265/2018 Page 33 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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2) xxxxx
3) Government Grant Property granted by government to a member of a joint family is the separate property of the donee, unless it appears from the grant that it was intended for the benefit of the family....." (emphasis supplied)
56. The same has also been authoritatively concluded in Mayne's Hindu Law and Usage, 16th Edition: "308. - Government Grant - Estate conferred by Government in the exercise of their sovereign power become the selfacquired property of the donee, whether such gifts are absolutely new grants, or only the restoration to one member of the family of property previously held by another but confiscated, unless members of his family show that they treated it as joint family property." (emphasis supplied)
57. Consequently, a bare perusal of the above commentaries clearly shows that a Grant under Displaced Persons (Compensation and Rehabilitation) Act, 1954 is the 'selfacquired property' of the donee."
The Plaintiffs have also argued with respect to expression "purchaser" in the Conveyance Deed in respect of the property of Outram Lane used by the land owning agency. The superfluous words "lawful heirs, successors, representative, assigns, transferees, lessees and any person or persons in occupation of the said property" cannot and shall not mean that it has given the right in presenti (i.e. at the time of execution Conveyance Deed) in favour of the said persons.
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The Plaintiffs is heavily relying upon the word "includes". The aforesaid words also include the following words:
(a) Assigns;
(b) Transferees;
(c) Lessees;
Even the persons who may or may not be in existence at the relevant time or even otherwise who may not have any concern with the purchase of the property are included in the aforesaid expression "include". The well recognized meaning for including the words heirs, legal representatives etc.....has only the effect that after the life time of the concerned party, his heirs or legal representatives may get the right in the property and it will depend on the facts and circumstances of the each case.
In the case of words "assigns, transferees and Lessees etc...", the same relate to the persons deriving the title from the concerned party (purchaser) in whose favour the concerned party may execute the document(s) and the same would depend the nature of the document(s). However, by no stretch of imagination, it would include the right in presenti in favour of those persons. It would depend upon the facts and circumstances of each case and it is the acts of the purchaser and in the present case of Sh. Tehal Ram, which would decide the course of action. Accordingly, the aforesaid argument of the Plaintiffs to such effect also sans merit and the same is hereby rejected.
The defendant No.1 is claiming the right in her favour Suit Nos. 264/2018 & 265/2018 Page 35 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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through the mutation dated 19.02.1998 and thereafter, Conveyance Deed dated 26.02.1999 by defendant No.8 in her favour. The plaintiffs have challenged the Mutation dated 19.02.1998 by seeking declaration to such effect, however, the plaintiffs have not challenged the execution of Conveyance Deed dated 26.02.1998 in favour of defendant no.1. The plaintiffs have relied upon Ex.PW1/8 to Ex.PW1/10, which are the copies of letters dated 14.06.1998, 25.09.1998 and 26.10.1999 written by Sh. Devki Nandan to DDA. The relevant portion of letter dated 14.06.1998 (Ex. PW1/8) is reproduced as under: "1) Vide my above dtd. letters I have requested your goodself to call me for a personal interview & inspection of File of my Property No. 222 Mukherji Nagar, Delhi110009 which had been wrongly mutated in the name of Smt. Raj Rani by false & Fabricated documents, Provided by her to the department.
2) In my letter dtd. 11.5.98 diary no. 8487. I requested your goodself to cancell the mutation in the name of Smt. Raj Rani but till this day I have not received any information of any progress to my request."
(The portion bolded in order to highlight) Thereafter, the Plaintiff has again given the letter dated 25.09.1998 and 26.10.1998 regarding cancellation of the Mutation letter. The said letters were given by the attorney Shri Dilshad Rai Suit Nos. 264/2018 & 265/2018 Page 36 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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on behalf of Shri Devki Nandan, predecessor in interest of the Plaintiffs. The said Shri Dilshad Rai also claims to be registered Power of Attorney Holder on behalf of the Plaintiffs. The predecessor in interest was having the knowledge about the mutation in favour of defendant No.1 way back on 11.05.1998, when admittedly Shri Devki Nandan, predecessor in interest had given the letter to the DDA for cancellation of the Mutation. Shri Devki Nandan has filed the Suit for Partition, Recovery of Damages and Permanent Injunction and the same was filed on or about 03.11.1998. It is an admitted position that Shri Devki Nandan expired on 19.11.2001 and on application moved by the present plaintiffs, their names were allowed to be substituted in the memo of parties. Therefore, the present Plaintiffs were also the parties in the said case and otherwise also, the Plaintiffs are Successor in interest and claiming their rights under Shri Devki Nandan. Now, it is apposite to reproduce Section 34 of the Specific Relief Act,1963 : "34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.Suit Nos. 264/2018 & 265/2018 Page 37 of 53
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Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee."
The bare perusal of the aforesaid Section clearly reveals that cause of action arises for filing of the suit for declaration and specifically mutation in this case arises when any person has denied or interested to deny the title of the plaintiff. In the present case, admittedly the right of the Plaintiff was clearly denied by defendant No.1, when the defendant No.1 had applied for mutation of the suit property in her name on the basis of registered Will dated 26.10.1973 and defendant No.8 had mutated the property in the name of defendant No.1 on the basis of registered Will dated 26.10.1973. The said mutation order dated 19.02.1998 clearly reveals that on the basis of the registered Will the suit property was mutated/transferred in the name of defendant No.1 and the terms and conditions of allotment/lease deed shall be binding upon defendant no.1. The predecessor in interest Shri Devki Nandan was aware about the mutation of the property in the records of DDA in favour of defendant No.1. The plaintiffs are claiming the relief of declaration and the Limitation period for claiming declaration can be inferred from Article 58 of the Schedule I appended to the Limitation Act, which reads as under: "Description of Period of Limitation Time from which Suit period begins to run To obtain any other Three years When the right to sue Suit Nos. 264/2018 & 265/2018 Page 38 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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declaration. first accrues.
The reading of Section 34 of the Specific Relief Act, 1963 and aforesaid Article 58 of the Schedule I appended to the Limitation Act, would clearly reveals that the Plaintiff ought to have filed the suit for seeking declaration of the order dated 19.02.1998 qua mutation within the period of three years of its knowledge as the right to sue first accrues from the date of knowledge and admittedly, the predecessor in interest Shri Devki Nandan was having the knowledge of the same on 11.05.1998 and the same is borne out of the documents relied upon the Plaintiffs themselves. The present suit has been filed on 25.10.2004 i.e. more than 6 years from knowledge/right to sue first accrues of the factum about the Mutation dated 19.02.1998. The Plaintiffs have vehemently argued that vide Judgment dated 13.12.2003 passed by the then Ld. ADJ, Delhi, it is held that the mutation effected by DDA does not hold good and therefore, the same is liable to be setaside. The perusal of the Judgment dated 13.12.2003, the Ld. Court has held that Mutation does no confer any title as it merely maintains record in respect of the occupation of the property. The Ld. Counsel for defendants No.1 and 2 has argued that the said findings are challenged by way of counterclaim for the simple reason that the suit of the Plaintiffs was dismissed and instead of challenging the same the Plaintiffs have preferred the present suit. The defendants No.1 and 2 were not having any opportunity to challenge only the Suit Nos. 264/2018 & 265/2018 Page 39 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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findings of the Ld. Court 26.02.1999 before the Appellate Court as the result of the suit was in favour of defendants no.1 and 2 and therefore, the defendants no.1 has challenged by way of Counter Claim in the present case.
With due respect, the Ld. Court has failed to consider various aspect while considering the order of mutation passed by the Ld. DDA. Firstly, the DDA has mutated the name of defendant no.1 in place of original lessee i.e. Late Shri Tehal Ram in the records, thereby, it means that defendant No.1 was considered as Lessee for all intents and purposes and there is no dispute with the proposition that the Lessee of the DDA properties has valuable rights and almost equivalent to owner in the relevant property. The mutation in the records of the DDA is not for the purpose of paying the any property tax as in the case of Municipal Records/Authorities or paying the Revenue as in the case of Revenue Records/Authorities. The mutation in the land owning agency like DDA is basically recognition of the rights in favour of the person as it was originally existed in favour of the allottee of the land/property by the DDA. The person, whose name the property would be mutated, for all practicable purposes would be considered as Lessee of the original Lease Deed qua the property in question. Secondly, in the present case not only the property was mutated in the name of defendant No.1 but admittedly the Conveyance Deed dated 26.02.1999 was also executed by DDA in favour of defendant No.1. The execution of Conveyance Deed by the DDA i.e. land Suit Nos. 264/2018 & 265/2018 Page 40 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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owning agency would mean that the entire right, title and interest has been conferred in favour of the person in whose favour conveyance is executed. The DDA has executed the conveyance deed in favour of defendant No.1 and the defendant No.1 became the absolute owner of the property in question from and at time of execution. The Conveyance Deed was done only after mutation of the property in favour of defendant No.1. The defendant No.1 became the lessee of the property on the mutation i.e. on 19.02.1998 and she became owner of the property in question on 26.02.1999. Shri Devki Nandan or the Plaintiffs have not sought any declaration qua Mutation dated 19.02.1998, in spite of the knowledge of the same on 11.05.1998, which was done by defendant no. 8 in favour of defendant no.1, in the suit which was filed on or about 3.11.1998. The plaintiffs have sought declaration of the mutation dated 19.02.1998 in the present case, however, the same has sought after a period of six years and the time which was provided in terms of Article 58 of the ScheduleI appended to the Limitation Act, 1963 is three years from the date of knowledge as the right to sue first arises from the date of knowledge and Shri Devki Nandan, who is predecessorininterest, who was challenging the said mutation, was in the knowledge since 11.05.1998 and the said letter was given by Shri Dilshad Rai who is power of attorney holder of the plaintiffs also. Moreover, mutation letter dated 19.02.1998 was merged into the Conveyance Deed dated 26.02.1999. The plaintiffs in the present case themselves pleaded in Suit Nos. 264/2018 & 265/2018 Page 41 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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the plaint that during the course of earlier proceeding, it came to their knowledge that the suit property was converted to free hold in favour of defendant no.1. The defendant no. 8 has also specifically pleaded in written statement that defendant No.8 has already executed the Conveyance Deed dated 26.02.1999 in favour of defendant No.1. The written statement was filed by defendant No.8 on 27.09.2005. The Plaintiffs have not chosen to challenge the said Conveyance Deed, although, the same was in the knowledge of the Plaintiffs as they were aware about the proceedings before the DDA as they were regularly following the DDA and moreover, the plaintiffs themselves have pleaded about coming to know with respect to free hold of suit property in favour of defendant no.1 in the earlier proceedings. The defendant No.8 had also taken the specific stand that Conveyance Deed dated 26.02.1999 was executed in favour of defendant No.1 but the Plaintiffs have not sought any declaration qua the said Conveyance Deed. The Conveyance Deed is in existence and the same had conferred right, title and interest in favour of defendant No.1. The Plaintiffs have not claimed any relief of declaration qua the said Conveyance Deed, however, the said relief is also barred by law of limitation in terms of Article 58 of the Schedule I appended to the Limitation Act.
There is another aspect of the matter. As per the plaintiffs themselves, the predecessorininterest Sh. Devki Nandan has left the premises sometime in the year 197576 alongwith his family and shifted to Krishna Nagar, Delhi and the basic reason, Suit Nos. 264/2018 & 265/2018 Page 42 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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which has been stated by the plaintiffs is that there was dispute with the family of Sh. Om Prakash, specifically the wife of Sh. Om Prakash i.e. defendant no.1. The plaintiffs have claimed that in one room, the predecessorininterest Sh. Devki Nandan has left some articles and accordingly, they maintained the possession in the said house. There are chronological events, which come to the light of this Court. The defendant no.1 claims the right in the property through registered Will dated 26.10.1973 and the plaintiffs themselves claimed that they have shifted to Krishna Nagar, Delhi sometime in the year 197576. Sh. Tehal Ram @ Tala Ram has expired on 24.09.1980. It is strange enough that in spite of the dispute between the parties, specifically between the family of Late Sh. Devki Nandan and Sh. Om Prakash, the plaintiffs or Late Sh. Devki Nandan have not claimed any right in the suit property for about 18 years from the date of death of Sh. Tehal Ram @ Tala Ram i.e. the father of Late Sh. Devki Nandan and Sh. Om Prakash. The communications to the DDA were not made prior to 1998 and the said communications were made by Sh. Dilshad Rai as Attorney of Late Sh. Devki Nandan. Sh. Dilshad Rai has also filed the present case as registered Power of Attorney holder of the plaintiffs. It is interesting to note that during the crossexamination of PW1 i.e. Sh. Dilshad Rai, he could not even recognize plaintiff no.1. However, the PW2 i.e. plaintiff no.1 has stated that he has executed the registered Power of Attorney in favour of Sh. Dilshad Rai. The perusal of the regd. Power of Attorney Ex.PW1/1 reveals Suit Nos. 264/2018 & 265/2018 Page 43 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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that the said Power of Attorney was not in the usual form whereby, the powers are conferred only for the purpose of signing, institution and prosecution of the case. The Clause No. 7 of Ex.PW1/1 is reproduced herein for apt understanding: "7. To let out the same to anyone and to receive the rent and issue receipt, hand over the possession, enter any agreement, execute further attorney, appoint any vakil/advocate, to transfer the said property and execute any document and present the same before any office and to appoint any arbitrator in respect of any dispute relating to the said property."
(The portion bolded in order to highlight) The aforesaid clause usually finds in a salepurchase transaction through GPA. The plaintiffs have claimed that Sh. Dilshad Rai is the property dealer, however, there is nothing on the record to show that he is the property dealer, but definitely from the bare perusal of the aforesaid clause, it appears that the suit has actually been filed by Sh. Dilshad Rai only for his own benefits, otherwise, the aforesaid clause ought not to have been there for the purpose of signing, instituting and prosecuting the suit. The present litigation appears to have been financed by Sh. Dilshad Rai, who is not the family member of the plaintiffs. One fails to understand that if the plaintiffs were having the right, why Late Sh. Devki Nandan has not immediately pursued his legal remedies Suit Nos. 264/2018 & 265/2018 Page 44 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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available to him under the law after the death of his father in the year 1980, more so, when there was dispute between the family members of Late Sh.Devki Nandan and Sh.Om Prakash. Sh.Devki Nandan had woken up from slumber after 18 years from the death of Sh.Tehal Ram and the same was also started by Sh.Dilshad Rai claiming to be the Power of Attorney holder of Sh.Devki Nandan, who is not even the family member of Sh. Devki Nandan and/or plaintiffs. The aforesaid chronological events show that Late Sh.Devki Nandan was aware about the registered Will dated 26.10.1973 executed by Late Sh.Tehal Ram in favour of defendant no.1 and therefore, the predecessorininterest and/or for that matter, the plaintiffs have not claimed any right for a period of about 18 years from the death of Sh.Tehal Ram and the right was also claimed through a person namely Sh.Dilshad Rai, a person who is not at all the family member of plaintiffs and/or their predecessorininterest Sh.Devki Nandan.
The plaintiffs have claimed that the counterclaim is barred by resjudicata and if this Court buys the said argument of the plaintiffs, then the suit of the plaintiffs is also barred by res judicata as the plaintiffs are reagitating the claim of partition, which was dismissed by the then Ld.ADJ while passing the judgment dated 13.12.2003. The counterclaim cannot be said to be barred by resjudicata for the simple reason that the plaintiffs' suit was dismissed and in the said suit, there are certain findings, which are against the defendant no.1 and since the plaintiffs have Suit Nos. 264/2018 & 265/2018 Page 45 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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not filed the appeal and instead filed the present suit, then the defendant no.1 has right to challenge the findings in the present suit by way of counterclaim. Moreover, the perusal of the said judgment reveals that there are certain findings, which were passed by the Ld.Court do not appear to be in consonance with the law and the same have been discussed hereinabove also and the suit of the plaintiffs was dismissed primarily on the ground of nonjoinder of successorininterest of Smt.Darshana. The plaintiffs have claimed to be coowners of the suit property to the extent of 2/3rd share and the then Ld.ADJ in the said judgment and decree dated 13.12.2003 has categorically held that no right, title or interest of Late Smt.Darshana can be claimed by the predecessorininterest Sh.Devki Nandan on the basis of the alleged Relinquishment Deed and therefore, the Court has specifically came to the conclusion that the suit is bad for nonjoinder of necessary party. In the present case, the defendants no.3 to 7, who are the parties to the present case, have specifically claimed that Late Sh.Tehal Ram had executed the Registered Will dated 26.10.73 in favour of defendant no.1 and the alleged Relinquishment Deed is forged and fabricated document. Even if, it has not been proved that the said document is forged & fabricated document but there is a categorical finding in the earlier case that the said Relinquishment Deed does not confer any right, title & interest in favour of predecessorininterest Sh. Devki Nandan or for that matter, in favour of the plaintiffs. The said findings are perfectly legal and the same have not been challenged Suit Nos. 264/2018 & 265/2018 Page 46 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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by the plaintiffs either in the appeal or even in the present proceedings and the said findings have attained finality qua the plaintiffs.
In my considered opinion, the present suit is not hit by resjudicata but the estoppel would definitely apply to the certain findings, which were against the plaintiffs, which the plaintiffs ought to have challenged in the appeal and moreover, the said findings are also not challenged in the present suit.
The findings qua the shareholding of the plaintiffs in the said suit is required to be seen in the light of the mutation letter dated 19.02.1998 and the Conveyance Deed dated 26.02.1999 executed in favour of defendant no.1 by DDA i.e. defendant no. 8. The DDA has recognized the rights of defendant no.1 by mutating the property in favour of defendant no.1 on the basis of registered Will dated 26.10.1973 and thereafter, the defendant no.8 has recognized the right of defendant no.1 by executing the registered Conveyance Deed in favour of defendant no.1. The detailed findings have already been given qua the mutation and Conveyance Deed and by the said documents, the defendant no.1 has been given absolute right, title and interest by the land owning agency. The plaintiffs have challenged the mutation letter dated 19.02.1998 by seeking declaration and the detailed discussions have been made hereinabove which clearly show that the declaration sought by the plaintiffs is barred by limitation and furthermore, the plaintiffs have not at all sought any declaration qua the Conveyance Deed dated Suit Nos. 264/2018 & 265/2018 Page 47 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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26.02.1999. The Conveyance Deed has given absolute right, title and interest in favour of the defendant no.1. The said document clearly denies the right of the plaintiffs and the plaintiffs ought to have challenged the said document but the plaintiffs have failed to do so in spite of the knowledge of the same, as discussed hereinabove. The findings of the then Ld. ADJ, Delhi in the judgment dated 13.12.2003 holding that the plaintiffs to be the co owners of the suit property, are against the documents of mutation dated 19.02.1998 and Conveyance Deed dated 26.02.1999, which were in specific knowledge of the plaintiffs but the plaintiffs have not sought any declaration even qua the mutation dated 19.02.1998 in the earlier suit and in the present suit, the suit for declaration is time barred on the face of it. Moreover, the challenge to the mutation dated 19.02.1998 by way of declaration in the present suit is also barred by the provision of Order 2 Rules 1 & 2 CPC. At the cost of repetition, it is reiterated that the Conveyance Deed dated 26.02.1999 executed by defendant no. 8 in favour of defendant no.1 creates valuable right, title and interest in favour of defendant no.1 and the plaintiffs have not sought any declaration qua the said Conveyance Deed dated 26.02.1999 and defendant no.1 became the absolute owner by means of the said document.
Considered from any view point, the plaintiffs are not entitled to claim any right in the suit property, in view of the detailed discussions made hereinabove. Accordingly, the issues no. 1, 5 to 10, as framed in the suit and issues no. 1 and 2, as framed Suit Nos. 264/2018 & 265/2018 Page 48 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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in the counterclaim are decided in the aforesaid terms. ISSUE NO.4 (4) Whether the suit is valued properly for the purposes of court fees and jurisdiction and the required court fees has been paid? OPP FINDINGS & CONCLUSIONS OF THE COURT The perusal of the plaint reveals that the plaintiffs have valued the suit property for the sum of Rs.4,75,000/ for the relief of partition. The other reliefs, which the plaintiffs have sought, are the mandatory injunction, declaration, permanent injunction and the suit has been valued on the said relief on a fixed value. The main dispute is with respect to the valuation of the property at the time of filing of the suit qua the relief of partition and the suit property was valued @ Rs.4,75,000/. The plaintiffs claim to be in possession of the property and therefore, paid the fixed court fee.
The defendants in their respective Written Statement have alleged that the plaintiffs have not correctly valued the suit for the purpose of court fee and jurisdiction and as per the defendants, the value of the suit property at the time of filing of the suit is more than Rs.40.00 Lakhs. The defendants no. 1 & 2 have taken the stand that plaintiffs are not in possession of the suit property.
The perusal of the record reveals that the defendants have not produced any document on record to show that the valuation of the suit property was Rs.40.00 Lakhs at the time of filing of the suit. However, PW1, during his crossexamination Suit Nos. 264/2018 & 265/2018 Page 49 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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done on 04.04.2011, had categorically admitted that the value of the suit property was Rs.15.00 Lakhs - Rs.16.00 Lakhs at the time of filing of the suit. Accordingly, the suit has not been correctly valued, as per the plaintiffs themselves. The suit at least ought to have been valued for a sum of Rs.16.00 Lakhs, which is admitted by PW1 during his crossexamination. The perusal of the record reveals that the plaintiffs have failed to prove on record that the plaintiffs were in possession of the property in question. There is no iota or scintilla of evidence to show on record that the plaintiffs were in possession of the suit property. Moreover, the PW1 and PW2 themselves have stated that the predecessorininterest Sh. Devki Nandan has shifted from the suit property in the year 1975 76 to Krishna Nagar. Although, it has been stated that the articles of Sh. Devki Nandan were lying in one room but the plaintiffs have failed to prove the same by any cogent and convincing evidence. However, it is an admitted position that the plaintiffs are not in possession of the suit property and the predecessorininterest with his family was in the possession and that too, in the year 197576. The present suit was filed on 23.10.2004 i.e. after about 29 years from the said date. Even Sh. Tehal Ram had expired in the year 1980 and from that period also, the plaintiffs have filed the suit after about 24 years. There was clear cut ouster of the plaintiffs. The plaintiffs have not valued the suit correctly for the purpose of partition and the court fee has also not been paid correctly by the plaintiffs as the plaintiffs claimed to be in possession of the suit Suit Nos. 264/2018 & 265/2018 Page 50 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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property but actually, the plaintiffs are not in possession of any portion of the suit property. This Court does not lack the jurisdiction on the pecuniary value of Rs.16.00 Lakhs, as admitted by the PW1, however, the plaintiffs have claimed themselves to be coowners of 2/3rd share in the suit property and since they are not in the possession of the suit property, they are liable to pay the court fees to the extent of 2/3rd share, as claimed by them. It is well settled that the suit cannot be rejected on this ground until & unless the opportunity is given to the plaintiffs to pay the deficient court fees in terms of Order 7 Rule 11 (b) & (c) CPC. Accordingly, the plaintiffs are directed to pay the deficient court fees in view of the valuation towards the share claimed by them within a period of 30 days from today, failing which the suit of the plaintiffs will be deemed to be rejected in terms of Order 7 Rule 11 (b) & (c) CPC. Accordingly, the issue no.4 is decided in the aforesaid terms. ISSUE NO.2 (2) Whether the suit is bad for nonjoinder and misjoinder of defendant no. 2 to 7 and 8 as alleged in preliminary objection of written statement of defendant no.2? OPD FINDINGS AND CONCLUSIONS OF THE COURT Dehors the findings on other issues, the defendants No.2 is daughter of Late Shri Om Parkash (son of Late Tehal Ram @ Tala Ram) and Similarly, Defendants No.3 to 7 are successors in interest of Smt. Darshana (who was the daughter of Late Tehal Ram @ Tala Ram). The defendant No.8 is department who had Suit Nos. 264/2018 & 265/2018 Page 51 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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first of all mutated the suit property and thereafter executed the conveyance deed in favour of the defendant No.1. All the parties are proper and necessary parties for adjudication of the present case. Moreover, in the present case, it is not claimed that there is nonjoinder of parties but the claim of misjoinder of parties and it is settled position in terms of Order 1 Rule 9 CPC that no suit shall be defeated by reason of the misjoinder and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
Accordingly, the issue no.2 is decided in favour of the plaintiffs and against the defendants. RELIEF From the discussions, as adumbrated hereinabove, I hereby pass the following FINAL ORDER
(a) The suit of the plaintiffs is dismissed. The counterclaim of the defendants no. 1 & 2 is allowed in terms of the findings given hereinabove qua issues no. 1 and 5 to 10, as framed in the suit and issues no. 1 and 2, as framed in the counter claim.
(b) The parties shall bear their own respective costs of the litigation.
Decreesheet be prepared accordingly in terms of this decision in the suit as well as in the counterclaim.
Two separate sets of judgment be prepared and out of Suit Nos. 264/2018 & 265/2018 Page 52 of 53 Raman Birla & Ors. V. Raj Rani & Ors.
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which, one judgment be kept in the suit and second set of the judgment be kept in the counterclaim.
Files of the suit as well as of the counterclaim be consigned to Record Room after due compliance. Announced in the open court on this 24th Day of October, 2019.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi Suit Nos. 264/2018 & 265/2018 Page 53 of 53