Delhi District Court
This Is A Suit For Possession And ... vs Shri Ram Bhajan Singh" Bearing Suit ... on 8 April, 2019
In the Court of Shri V.K. Gautam : Additional Senior Civil
Judge of Central District at Tis Hazari Courts, Delhi
Suit No.1346/2016
In the matter of :-
Shri Shankar Saran Singh,
Son of Shri Ram Bhajan Singh,
Resident of House No. WZ-270,
Gali No.9, Lajwanti Garden,
Nangal Raya, New Delhi-110046
........Plaintif
VERSUS
1. Shri Keshav Chander Singh,
Son of Shri Ram Bhajan Singh
2. Shri Rajesh Kumar Singh,
Son of Shri Keshav Chander Singh
3. Shri Umesh Kumar Singh,
Son of Shri Keshav Chander Singh
4. Shri Rajan Kumar Singh,
Son of Shri Keshav Chander Singh
5. Shri Sanjay Kumar Singh,
Son of Shri Keshav Chander Singh
All residents of House No. WZ-270,
Gali No.9, Lajwanti Garden,
Nangal Raya, New Delhi-110046
.....Defendants
Date of institution : 10.03.2005
Reserved for Judgment : 05.04.2019
Date of decision : 08.04.2019
CS No.1346/16 Page no. 1 of 24
Suit for Possession and Mandatory Injunction
JUDGMENT
1. This is a suit for possession and mandatory injunction thereby directing the defendants to handover the vacant and peaceful possession of the property in question to the plaintiff out of property bearing No.WZ-270, Gali No.9, Lajwanti Garden, Nangal Raya, New Delhi-110046 which has been more specifically shown in red colour in the annexed site plan. It is also prayed that damage at the rate of Rs.5,000/- per month from 01.01.2005 be passed for the excess space forcibly occupied by the defendants.
Plaintifs' Case
2. In brief, the case of the plaintiff is that the plaintiff and the defendant no.1 are real brothers and the defendants no. 2 to 5 are the sons of the defendant no.1. The father of the plaintiff as well as the defendant no.1, namely, Shri Ram Bhajan Singh was the absolute owner and in exclusive possession of a free hold built-up property i.e. the suit property measuring 114 square yards vide registered sale deed dated 16.12.1968. The defendants being the son and grandsons of Shri Ram Bhajan Singh came in possession in respect of a portion forming part of the suit property which has been specifically shown in red colour in the attached site plan. It is further stated that Shri Ram Bhajan Singh was not happy with the behaviour and attitude of the CS No.1346/16 Page no. 2 of 24 defendants as such he never intended to give any share in the suit property to the defendants and they are residing in the same on the mercy of the father of the plaintiff and the defendant no.1. In fact, the defendants have no right, title and interest in the suit property. The intentions of the defendants became bad and they started threatening the father of the plaintiff to grab the suit property unlawfully and illegally and they also threatened that in case they will not be given their share in the suit property, they will handover the possession thereof to any third party after receiving handsome consideration amount from them. It is further stated that the plaintiff's father had executed a registered gift deed dated 15.09.2001 in favour of the plaintiff in respect of 50% share i.e. western half portion of the suit property, which also includes the property in question in possession of the defendants and the plaintiff became the absolute, exclusive and sole owner of the property in question for all purpose. The plaintiff's father also executed a Will in favour of his grandson, namely, Ravi Prakash i.e. son of the plaintiff in respect of the remaining 50% share of the suit property. The defendant no.1 filed a suit for mandatory injunction and permanent injunction against the father of the plaintiff and the plaintiff titled as "Shri Keshav Chander Versus Shri Ram Bhajan Singh" bearing Suit no.303 of 2001 which was dismissed vide order dated 07.01.2005. The defendants no. 2 and 3 at the instance of the defendant no.1, with an intention to further harass the plaintiff, filed another suit for permanent injunction against the plaintiff bearing suit no.332 of 2001 titled as "Shri Rajesh Kumar Singh and another Versus CS No.1346/16 Page no. 3 of 24 Shri Shankar Saran Singh" which was disposed of on the statement of the plaintiff to the effect that the plaintiff will not dispossess the defendants without due process of law. It is further stated that since the plaintiff is the absolute, sole and exclusive owner of the western 1/2 portion of the property including the suit property and he as such has been requesting the defendants time and again to vacate the suit property and also to handover the possession thereof to the plaintiff and to allow him to construct boundary wall but the defendants did not pay any heed to genuine and legal request of the plaintiff. Rather, they have been threatening the plaintiff to handover the possession of the suit property to some other person thereby creating third party interest in the suit property. The plaintiff being the lawful owner and in possession of the suit property has got every right to vouch safe his interest in respect of the property in question and the defendants have got no right, title or authority to handover the possession of the same in favour of any third person except the plaintiff. Hence, the present suit.
Defendants' Case
3. The defendants no.1 to 5 have filed their joint written statement wherein it is contended that the plaintiff has no right, title or interest in the suit property as late Shri Ram Bhajan Singh, father of the plaintiff and the defendant no.1 and grandfather of the defendants no. 2 to 5 has executed last Will and testament dated 05.08.2004 wherein he has revoked gift deed dated CS No.1346/16 Page no. 4 of 24 15.09.2001, Will dated 28.11.2002, public notice dated 12.10.2003 and other complaint, court cases, reply, affidavit, vakalatnama as they were got executed under pressure, threat, coercion by the plaintiff and his family. The defendant no.1 after receiving the original Will dated 05.08.2004 has filed the probate case titled as "Shri Keshav Chander Singh Versus The State and Others". It is further stated that the defendant no.1 is the lawful owner of the property in question by virtue of Will dated 05.08.2004 and the defendants no. 2 to 5 being legal heirs and family members of the defendant no.1 are residing therein. The plaintiff has not approached this Court with clean hands and suppressed the material facts. It is stated that late Shri Ram Bhajan Singh purchased the suit property and the defendant no.1 being the elder brother contributed in purchase and construction of the property in question.
4. It is further contended in the written statement filed on behalf of the defendants that as the plaintiff was of quarrelsome nature, Shri Ram Bhajan Singh intended to divide the property and made declaration dated 16.10.2000 in the presence of Shri Manoj Goel and Shri Praveen Kumar and gave 1/2 portion towards eastern side to the defendant no.1 and 1/2 portion towards the western side to the plaintiff which was accepted by the plaintiff and the defendant no.1. The plaintiff picked up quarrel on 16.10.2000 and made compromise before police. The intention of the plaintiff malafide and on 02.08.2001 at noon time when the defendants were not at home, the plaintiff took his father from CS No.1346/16 Page no. 5 of 24 the custody of the defendant no.1 forcibly in the presence of Shri Hemant Goel and kept in illegal confinement at RZ-B/30, Vijay Enclave. The plaintiff under threat, pressure and coercion got signed gift deed and got the same registered under threat by obtaining forged NOC by fraudulent means in wrong khasra number. As soon as the defendant no.1 came to know about the same, he lodged the complaints dated 02.08.2001 and 18.09.2001 to the Sub Registrar in this respect. After getting a gift deed executed fraudulently in his favour, the plaintiff wanted to evict the defendants no. 2 and 3 forcibly, therefore, the defendants no. 2 and 3 filed a civil suit for permanent injunction wherein on the report of the local commissioner, the Court was pleased to grant interim stay and subsequently the plaintiff gave statement that he would not dispossess the defendants without due process of law. Accordingly, the said suit was dismissed as withdrawn. Shri Ram Bhajan Singh was kept in illegal confinement and the defendants were not allowed to meet him by the plaintiff and his family members, not allowing him to come out and execute necessary documents in favour of the defendant no.1, therefore, the defendant no.1 filed suit for permanent and mandatory injunction. It is further stated that taking advantage of his illegal confinement with malafide intention to dispossess the defendant no.1 from the 1/2 portion of the eastern side the plaintiff by exercising threat, pressure and coercion got fraudulently executed a Will dated 28.11.2001 in favour of his son, namely, Ravi Prakash. It is further stated that during the pendency of the suit filed by the defendant no.1, the plaintiff and CS No.1346/16 Page no. 6 of 24 the defendant no.1 intended to compromise and a draft copy of the compromise containing the terms and conditions was also prepared, however at the time of executing the said compromise, the plaintiff backed out. After revocation of gift deed vide Will dated 05.08.2004, the plaintiff has no locus standi to file the present suit having no right, title or interest in the suit property. The defendants are not liable to pay damages @ Rs.5,000/- per month w.e.f. 01.01.2005. It is further stated that the defendant by virtue of Will dated 05.08.2004 is the lawful owner and as such he is in possession of the entire property in question. The plaintiff has no right, title or interest in the property as such the defendants are liable to pay any damage to the plaintiff. It is further stated that the gift deed, if any has been forcibly and illegally got executed by the plaintiff under pressure, threat and coercion by keeping the late Shri Ram Bhajan Singh in illegal confinement at Vijay Enclave and the same has been revoked by him through his last Will and testament. It is denied that the gift deed dated 15.09.2001 was ever executed voluntarily and willingly. It is denied that the plaintiff has become absolute, exclusive and sole owner of the property in question for all purposes. It is stated that the defendants have only the suit property to live therein and under these circumstances, there is no question of creating the third party interest in the property. The defendants have denied the other allegations of the plaint and have prayed for dismissal of the suit.
5. Replication was filed by the plaintiff to the written statement CS No.1346/16 Page no. 7 of 24 of the defendants wherein the contents of the plaint have been reiterated and the contentions of the defendants in their written statement have been denied except the admissions made.
6. During the pendency of the suit, the defendant no.1 unfortunately expired and the legal heirs of the deceased defendant no.1 were impleaded in his place as defendants no.2 to 5 in the arrays of the parties who were also parties at the time of filing of the suit.
Issues
7. Vide order dated 11.02.2009, the following issues were framed by my learned Predecessor for trial :
1. Whether the suit is barred under Section 41 (h) of the Specific Relief Act? OPD
2. Whether the Gift Deed dated 15.09.2001 was obtained by the plaintiff by force? OPD
3. Whether the suit has not been properly valued by the plaintiff? OPD
4. Whether the plaintiff is entitled for decree of possession of property bearing No.WZ-270, Gali No.9, Lajwanti Garden, New Delhi-46? OPP
5. Relief.
Plaintif's Evidence
8. The plaintiff has examined six witnesses. The plaintiff has CS No.1346/16 Page no. 8 of 24 examined himself as PW1 who in his affidavit in evidence Ex.PW-1/1 has stated and reiterated on oath the contents of the plaint. He has relied upon certain documents. Mark A is the site plan. Mark B and Mark C are the copies of the police complaints dated 08.10.2001 and 27.01.2002. Mark D is copy of the complaint dated 23.08.2011 made by late Shri R.B. Singh to the DCP, South West, Delhi. Mark E is copy of the registered Will dated 28.11.2001 in favour of Shri Ravi Prakash. Mark F is copy of the affidavit to SDM. Delhi Cant dated 24.12.2002. Mark G and Mark H are copies of newspapers i.e. Sunday Statesmen and Rashtriya Sahara. Ex.PW1/A is original Gift Deed dated 15.09.2001.
9. PW2 is Constable Rahul, Police Station Dabri who has proved the copy of order dated 28.01.2013 as Ex.PW2/A passed by the police authority vide which the record pertaining to complaint dated 27.01.2002 has been destroyed.
10. PW3 is Constable Sandeep, Police Station Mayapuri who has proved the copy of order dated 19.10.2006 as Ex.PW3/A passed by the police authority vide which the record pertaining to complaint dated 08.10.2001 has been destroyed.
11. PW4 is Shri K.K. Sharma, attesting witness of the Gift Deed (Ex.PW1/A) who in his evidence affidavit Ex.P-4 has deposed that he was known to Shri Ram Bhajan Singh and was having visiting terms with him. He further deposed that Shri Ram Bhajan Singh, CS No.1346/16 Page no. 9 of 24 while in sound health and senses, had executed a Gift Deed in favour of his son, Shri Shankar Sharan Singh, who was living with his father and he was looking after him. PW4 further deposed, he was an attesting witness to the said Gift Deed and the said deed was executed by Shri Ram Bhajan Singh in favour of his son, Shri Shankar Sharan Singh after understanding the contents of the same without any pressure, coercion and/or undue influence. PW4 further deposed in his evidence affidavit that the said Gift Deed was duly registered before the office of the concerned Sub Registrar, Delhi and he was present at that time.
12. PW5 is Shri Suresh Kumar, Record Keeper, Officer of the Sub Registrar IX, Kapashera, New Delhi who has proved the gift deed already exhibited as Ex.PW1/A.
13. PW6 is Constable Pradeep Kumar, South West District, DCP Office, Complaint Branch, New Delhi who has brought a photocopy of order dated 23.03.2012 duly attested by ACP, South West as per which all the records prior to 2008 have been destroyed.
Defendant's Evidence
14. The defendants have examined eight witnesses. The defendant no. 2 i.e. Shri Rajesh Kumar Singh has examined himself as DW1 who in his affidavit in evidence Ex.DW1/A has stated and reiterated on oath the contents of the written CS No.1346/16 Page no. 10 of 24 statement. He has relied upon certain documents. Ex.DW1/1 is the death certificate of Shri K.C. Singh. Ex.DW1/2 is the death certificate of Smt. Kaushalya Devi. Ex.DW1/3 is copy of the Discharge Certificate of Shri Ram Bhajan Singh. Ex.DW1/4 is copy of the Ex-serviceman Identity Card issued from Sainik Board. Mark B is copy of the sale deed dated 16.12.1968. Mark C is the copy of the complaint dated 18.09.2001. Mark D is copy of Khasra Girdawari/Khatoni. Ex.DW1/8 is copy of N.O.C. Mark E is copy of the compromise/MOU draft. Mark F is typed copy of compromise/MOU duly signed by Shri K.C. Singh. Mark G is copy of the police complaint dated 28.08.2001. Mark H is copy of the complaint dated 28.10.2001. Mark I is copy of the Will dated 05.08.2004.
15. DW2 is Shri Manoj Kumar, neighbour of the defendants who in his evidence affidavit Ex.DW2/A has deposed that he was knowing to Shri Ram Bhajan Singh who was owner of the suit property and residing with his elder son, Shri K.C. Singh therein as the deponent is also resident of the same locality and used to meet Shri Ram Bhajan Singh almost every day. He further deposed that Ram Bhajan Singh had two sons i.e. elder son, K.C. Singh and younger son, S.S. Singh. The younger son, Shri S.S. Singh often used to pick up quarrel with Shri Ram Bhajan Singh in respect of the suit property and on 16.10.2000, the matter was reported to police and both the brothers compromised at the police station. DW2 further deposed that in order to avoid future dispute between brothers, Shri Ram Bhajan Singh partitioned the CS No.1346/16 Page no. 11 of 24 suit property in two equal parts and western portion was given to Shri S.S. Singh and Eastern portion was given to Shri K.C. Singh. The partition was done by way of writing as declaration on stamp papers on 16.10.2000 which was signed by DW2 as one of the attesting witness and the same also bears signatures of Shri Ram Bhajan Singh and another attesting witness, Shri Praveen Kumar. DW2 further deposed that on 02.08.2001, Shri S.S. Singh took away Shri Ram Bhajan Singh against his wishes to Vijay Enclave. Thereafter, the deponent never met with Shri Ram Bhajan Singh as he never visited to his property again till his death on 14.08.2004.
16. DW3 is Shri Hemant Goyal, neighbour of the defendants who in his evidence affidavit Ex.DW3/A has deposed that he is residing just opposite the suit property in his own house. The younger son of late Ram Bhajan Singh, namely Shri S.S. Singh who was residing at Vijay Enclave used to quarrel with Ram Bhajan Singh and his elder son, Shri K.C. Singh with whom he was residing since long time in respect of the suit property. DW3 has further deposed that on 02.08.2011 in afternoon, when Shri Ram Bhajan Singh was alone in the house and all other members of family were out of home, Shri S.S. Singh came and forcibly took away Shri Ram Bhajan Singh, though he was refusing and resisting to go with him, he was taken to Vijay Enclave in my presence. After 02.08.2001, Shri Ram Bhajan Singh was never brought back to Lajwanti Garden till his death at Vijay Enclave on 14.08.2004. DW3 has further deposed that being neighbourer CS No.1346/16 Page no. 12 of 24 Shri Ram Bhajan Singh never complained to him about Shri K.C. Singh and his family members while staying with him for long time.
17. DW4 is Shri Manvinder Singh who in his evidence affidavit Ex.DW4/A has deposed that he is running the business of tailoring at Shop no.202/13, Sadar Bazar, Delhi Cantt. and Shri K.C. Singh was also running his business of repair of electronic items at Shop No.1/196/1, Sadar Bazar, Delhi Cantt. The deponent was knowing the family of Shri K.C. Singh and his father, Shri Ram Bhajan Singh. Being neighbourer, Shri Ram Bhajan Singh used to visit the shop of the deponent for getting stitching his clothes. The deponent also used to visit the suit property to meet the family of Shri K.C. Singh and for delivery of stitched clothes. Whenever the deponent visited the suit property, there were cordial relation between Shri Ram Bhajan Singh and family of Shri K.C. Singh and Shri Ram Bhajan Singh never complained anything against K.C. Singh and his family to the deponent. DW4 further deposed that after August, 2001, he never met with Ram Bhajan Singh either at his home or at his shop whenever the deponent visited the house of Shri K.C. Singh or his shop. It is further deposed by DW4 that he is aware of the death of Ram Bhajan Singh on 14.08.2004 at Vijay Enclave at the house of his younger son, Shri S.S. Singh. Shri K.C. Singh also expired later on and presently the above said shop is being run by his son, Shri Rajesh Kumar Singh.
CS No.1346/16 Page no. 13 of 24
18. DW5 is SI Pankaj Kumar, Police Station Maya Puri, New Delhi who proved the circular dated 11.06.2015 as Ex.PW5/1 as per which the entire record pertaining to the complaints uptill 2010 has already been destroyed.
19. DW6 is Shri Gaurav Kumar, LDC from the office of the Sub Registrar-II, Basai Darapur, Delhi who has proved the complaint dated 02.08.2001 (already marked as Mark B) addressed to the Sub Registrar II, Janak Puri, New Delhi. He also proved a letter dated 29.03.2016 issued by Shri Lokesh Kumar, e Sub Registrar II along with a certified copy of dak register for the relevant time period which are exhibited as Ex.DW6/1 (colly).
20. DW7 is Constable Narayan, Police Station Dabri who proved the destruction certificate and letter of SHO dated 28.02.2013 as Ex.PW7/1 (Colly) as per which the summoned record has been destroyed.
21. DW8 is Shri Satbir Singh, Patwari, Nangal Rai, Tehsil, Delhi Cantt. who has proved the revenue record in repsect of Khasra no.218, 216, 217 and 215 pertaining to revenue state of Village Nangal Rai, Tehsil, Delhi Cantt. as Ex.DW8/1 (Colly).
22. Final arguments have been heard and record has been perused.
23. Now I shall give my issue-wise findings.
CS No.1346/16 Page no. 14 of 24 Findings ISSUE NO.1 :
Whether the suit is barred under Section 41 (h) of the Specific Relief Act? OPD
24. The onus to prove this issue was upon the defendants. It is the case of the defendant that the present suit is barred under section 41 (h) of Specific Relief Act as the plaintiff under the garb of mandatory injunction is seeking the directions of handing over the possession of the suit property. However, no evidence has been led by the defendants to prove as to how the present suit is barred under section 41 (h) of the Specific Relief Act. The plaintiff has filed the present suit for possession and mandatory injunction and has also prayed for both the reliefs of possession and mandatory injunction in the present suit. Therefore, there is no merit in the contentions of the learned Counsel for the defendants that the plaintiff in the garb of seeking mandatory injunction is seeking the relief of possession. The defendants have failed to discharge the onus of this issue. Accordingly, the issue no.1 is decided in favour of the plaintiff and against the defendants.
ISSUE NO.2 :
Whether the Gift Deed dated 15.09.2001 was obtained by the plaintiff by force? OPD CS No.1346/16 Page no. 15 of 24
25. The onus to prove this issue was upon the defendants. It is the case of the plaintiff that since Sh. Ram Bhajan Singh, the father of the plaintiff and the defendant no.1 and the grandfather of the defendants, was not happy with the behaviour and attitude of the remaining defendants, therefore he never intended to give any share in the suit property to the defendants and the defendants were residing at the suit property at the mercy of Sh. Ram Bhajan Singh. It is further case of the plaintiff that his father has executed a gift deed Ex.PW1/A in his favour in respect of Western half portion of the suit property which was duly registered in the office of the Sub-registrar of Delhi on 19/09/2001. On the other hand, though the execution of the gift deed by Sh. Ram Bhajan Singh in favour of the plaintiff is admitted by the defendants but it is the case of the defendants that the said gift deed Ex.PW1/A was got executed forcibly by the plaintiff from his father under threat, coercion and pressure.
26. It is admitted case of the plaintiff that at the time of execution of the gift deed, the father of the plaintiff was residing with him at his residence at Vijay Enclave, Palam Road, New Delhi. It is the case of the defendants that on 02/08/2001, the plaintiff forcibly took his father from the suit property to his other residence at Palam Road, New Delhi. It is also the case of the defendants that on 02/08/2001, the defendants were not at home when the plaintiff allegedly took his father forcibly alongwith him. DW-1 in his cross examination has admitted that on 02/08/2001, his Dadaji was of sound health and can walk and speak freely.
CS No.1346/16 Page no. 16 of 24 Therefore, it is highly improbable that the plaintiff can take his father with him forcibly without his consent. It is also an admitted fact that the father of the plaintiff resided with the plaintiff from 02/08/2001 till his death in the year 2004. Moreover, there would have been a complaint from the side of the father to the police in case he was taken away forcibly by his son. DW-2 has also admitted in his cross examination that on 02/08/2001, he did not try to stop or intervene when allegedly the plaintiff was taking away Sh. Ram Bhajan Singh against his wish. DW-2 by admitting that he did not stop or intervene has also admitted the fact that he was at home on 02/08/2001. DW-2 has also admitted that he did not make any complaint to any police station or to any other authority regarding the said incident on 02/08/2001 which further proves that the testimonies of the DW-1 and DW-2 cannot be relied upon as in the normal course of circumstances if there were any forcible taking away by the plaintiff, then in that circumstances, the defendants would have certainly made a complaint to the police on the same day or on the next day but there is no such complaint made by the defendants on such dates makes the testimonies of the DW-1 and DW-2 unbelievable.
27. Although, it is a case of the defendants that the defendant no.1 had lodged a complaint, Mark-G to the police on 28/08/2001, however, the said complaint has not been proved by the defendants as the original complaint has not been produced and no witness has been examined to prove the same. The complaint CS No.1346/16 Page no. 17 of 24 was also made after a period of about 26 days and not immediately after the alleged incident had taken place. The making of the complaint after a gap of so many days further shows that the same was made with malafide intention which has also otherwise not been proved as per the Indian Evidence Act. There is also no evidence lead as to what action has been taken by the police on the same. The testimony of the DW-3 that on 02/08/2001, Sh. Ram Bhajan Singh was alone in the house when the plaintiff allegedly took him forcibly to Vijay Enclave alongwith him, is also unreliable as the DW-2 in his cross examination has admitted that he did not try to intervene or stop which proves that the DW-2 was present at home at that time. DW-3 in his cross examination has admitted that he did not stop or intervene when the plaintiff was taking his father forcibly with him. He has also admitted that he had not made any complaint to the police or any authority regarding that incident. He has also admitted that he did not call anybody from his neighbourhood during the said incident. In the normal course of event, the DW-3 would have made a complaint or would have tried to intervene but no such act was done by him, which shows that his testimony cannot be relied upon. The testimony of the DW-3 further cannot be relied upon as it cannot be ruled out that the DW-3 being a neighbour of the defendants would depose in favour of the defendants. Therefore, the defendants have failed to discharge the onus of this issue. Accordingly, the issue no.2 is decided in favour of the plaintiff and against the defendants.
CS No.1346/16 Page no. 18 of 24 ISSUE NO.3 :
Whether the suit has not been properly valued by the plaintiff? OPD
28. The onus to prove this issue was upon the defendants. It is the case of the defendants that the plaintiff has not properly valued the suit nor has paid the appropriate court fees. The defendants have not proved any evidence as to how the suit has not been properly valued by the plaintiff. The said objection taken by the defendants is also not specific but vague. The perusal of the plaint shows that the plaintiff has valued the suit for purpose of possession for Rs.50,000/- of the portion which is in possession of the defendants and has also valued the suit for Rs.130/- for the relief of mandatory injunction and the appropriate court fees has also been paid by the plaintiff. Hence, the defendants have failed to discharge the onus of this issue. Accordingly, the issue no.3 is decided in favour of the plaintiff and against the defendants.
ISSUE NO.4 :
Whether the plaintiff is entitled for decree of possession of property bearing No.WZ-270, Gali No.9, Lajwanti Garden, New Delhi-46? OPP
29. The onus to prove this issue was upon the plaintiff. It is the admitted fact of both the parties that Sh. Ram Bhajan Singh, CS No.1346/16 Page no. 19 of 24 father of the plaintiff and the defendant no.1 was the owner of the suit property. It is the case of the plaintiff that as Sh. Ram Bhajan Singh was not happy with the behaviour and attitude of the defendants, he was not intending to give any share in the suit property to them. He had executed a gift deed Ex.PW1/A of the Western half portion of the suit property in favour of the plaintiff on 15/09/2001 and has executed a Will of the remaining half portion of Eastern side of the suit property in favour of his grandson namely Sh. Ravi Prakash (son of the plaintiff). It is also the case of the plaintiff that the gift deed was registered with the office of Sub-registrar, Kapashera, New Delhi. The plaintiff has examined PW-5 who has proved the registration of the gift deed Ex.PW1/A in the office of Sub-registrar, Kapashera, New Delhi. The plaintiff has also examined Sh. K. K. Sharma, who has supported and corroborated the testimony of the plaintiff that Sh. Ram Bhajan Singh in his sound health and senses had executed the Gift Deed, Ex.PW1/A in favour of the plaintiff. He was one of the attesting witnesses to the said Gift Deed Ex.PW1/A. He has also deposed that the plaintiff was looking after his father and the gift deed was executed by Sh. Ram Bhajan Singh in favour of the plaintiff without any pressure, coercion or any undue influence and the Gift Deed was duly registered before the office of Sub- registrar, New Delhi. PW-4 in his cross examination has also stated that besides him Sh. Ram Bhajan Singh, one other witness and the plaintiff were also present at the office of Sub-registrar, New Delhi. The testimony of the PW-4 in his cross examination has remained consistent with his testimony in his examination-in-
CS No.1346/16 Page no. 20 of 24 chief and nothing material has come out in favour of the defendants from his cross examination. In case, the plaintiff had got executed the gift deed forcibly from his father, then his father would not have gone to the office of the Sub-registrar, Kapashera, New Delhi for the execution of Gift Deed in favour of the plaintiff. Further more, my discussion on the issue no.2 shows that the defence taken by the defendants that the gift deed was forcibly executed by the plaintiff is improbable and unbelievable.
30. It is the case of the defendants that on 05.04.2004, a Will was executed by Sh. Ram Bhajan Singh while visiting Chhapra, Bihar by revoking the Gift Deed dated 15.09.2001, Ex.PW1/A and Will dated 28.11.2001, Mark-I. The Will, Mark-I is not proved as per Indian Evidence Act as the original has not been produced. Moreover, after the execution of the registered Gift Deed, Ex.PW1/A by Sh. Ram Bhajan Singh in favour of the plaintiff, Sh. Ram Bhajan Singh was no longer remained the owner of the gifted portion of the suit property and was having no right, title or interest on the same after the execution of the gift deed. Therefore, the alleged execution of the Will, Mark-I would not have revoked the Gift Deed, Ex.PW1/A and was of no consequence so far as the Gift Deed is concerned. There is also no evidence that any suit for cancellation of the registered gift deed was filed nor it is the case of the defendants that the father of the plaintiff has taken any such steps for cancellation of the Gift Deed, Ex.PW1/A which further substantiate the case of the plaintiff that the gift deed was executed with the own free will of CS No.1346/16 Page no. 21 of 24 Sh. Ram Bhajan Singh in favour of the plaintiff.
31. It is also the case of the defendants that on 16.10.2000, the declaration with regard to the partition of the suit property between the plaintiff and the defendants was made. The certified copy of which is Ex.PW1/D2. The defendants have not lead any evidence that there was any action taken in respect of the said declaration for the partition of the suit property. It is an admitted case of the parties that the plaintiff is still occupying the whole of the ground floor of the suit property. Therefore, mere declaration without their being any actual partition of the suit property on the basis of the declaration, it cannot be said that the suit property was partitioned between the parties. Therefore, the declaration, Ex.PW1/D2, does not create any right in favour of the defendants. The plaintiff has deposed that the defendants are liable to make a payment of Rs.5000/- per month from 01/01/2005 which is prevelent market rent for use and occupation of the suit property. The plaintiff except his testimony has not lead any evidence to prove that the suit property can fetch Rs.5000/- in the year 2005 per month. However, a judicial notice is taken on the fact that the suit property situated in an area of Delhi which would have easily fetched Rs.2000/- in year 2005. Therefore, the plaintiff is entitiled for the damages at the rate of Rs.2000/- from the filing of the suit till the receiving of the possession of the suit property from the defendants. Therefore, the plaintiff has been able to discharge the onus of this issue. Accordingly, the issue no.4 is decided in favour of the plaintiff and against the defendants.
CS No.1346/16 Page no. 22 of 24
Relief:
32. In the light of the aforesaid discussion, the suit of the plaintiff is hereby decreed with the following reliefs:
A. A decree of possession is passed in favour of the plaintiff and against the defendants and the defendants are directed to hand over the vacant and peaceful possession of the property in question to the plaintiff, out of the property bearing no.WZ-270, Gali No.9, Lajwanti Garden, Nangal Raya, New Delhi-110046 which has been more specifically shown and delineated in red colour in the annexed site plan.
B. A decree of mandatory injunction is passed in favour of the plaintiff and against the defendants thereby directing the defendants to hand over the possession in respect of the property in question, out of property bearing no.WZ-270, Gali No.9, Lajwanti Garden, Nangal Raya, New Delhi-110046 which has been more specifically shown and delineated in red colour in the annexed site plan to the plaintiff.
C. A decree is also passed in favour of the plaintiff and against the defendants for damages / mesne profits at the rate of Rs.2000/- per month from 01/01/2005 till the handing over the possession of the suit property to the plaintiff. The plaintiff to CS No.1346/16 Page no. 23 of 24 pay appropriate court fees on the amount of mesne profits before the preparation of the decree.
D. Costs of the suit.
33. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance. VINOD Digitally signed by VINOD KUMAR Announced in the Open Court KUMAR GAUTAM Date: 2019.04.08 on 08.04.2019 GAUTAM 17:59:31 +0530 (V.K. Gautam) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi CS No.1346/16 Page no. 24 of 24