Delhi District Court
Vijay Kumar Kaushik vs Usha Devi on 24 June, 2023
IN THE COURT OF SH. RAJINDER KUMAR
ADDITIONAL DISTRICT JUDGE-02, NORTH-WEST
ROHINI COURT: DELHI.
CS DJ No.30/2020
IN THE MATTER OF:
VIJAY KUMAR KAUSHIK
S/o Late Ramesh Chand Kaushik
R/o C-3/75, Dayalpur, Ext.
Karawal Nagar Road,
Delhi-110094.
......Plaintiff.
VERSUS
1. USHA DEVI
W/o Late Sh. Satender
R/o VII, 202, Shiv Vihar,
Gali No.12, Prem Nagar-II,
Near Nag Mandir,
Delhi-110086.
Also at:
10 D, D Block, Baljeet Vihar,
Baljeet Vihar,
Delhi-110086.
2. KUSUM LATA SHARMA (NOW DECEASED)
THROUGH LRs:
(I.) Mala
D/o Sh. Suresh Kumar Sharma
D/o Kusum Lata Sharma
(II.) Jyoti
D/o Kusum Lata Sharma
(III.) Sheru
S/o Sh. Suresh Kumar Sharma
S/o Kusum Lata Sharma
(IV.) Raja
S/o Sh. Suresh Kumar Sharma
CS DJ No.30/2020
Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 1 of 16
S/o Kusum Lata Sharma
(V.) Suresh Chand Sharma
Husband of Kusum Lata Sharma
All R/o WZ-501, Ramgarh Colony,
Basai Darapur, Moti Nagar,
New Delhi.
3. REKHA SHARMA
W/o Nandu Sharma
R/o Old Buri Pada Via Balsor
District Mayur Bhanj (Orissa).
4. JYOTI SHARMA
W/o Dinesh Sharma
R/o L-107/1A, L-Block Gali No.5,
Jai Prakash Nagar,
Delhi-110054.
..........Defendants.
Date of Institution : 26.09.2013
Date of Arguments : 24.06.2023
Date of Judgment : 24.06.2023
JUDGMENT :-
SUIT FOR PARTITION, DECLARATION & PERMANENT INJUNCTION.
1. This is a suit for partition, declaration and permanent injunction, filed by the plaintiff against defendants.
2. Brief facts of the case as per the plaintiff are that he and the defendants are the real brother and sisters, their mother died intestate on 08.04.13 leaving behind the parties hereto as her legal heirs. That the mother of the parties hereto CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 2 of 16 purchased a property bearing khasra no.16/20, Village abadi Baljit Vihar, Delhi measuring area 72 sq. yards for a consideration of Rs.60,000/- from Sh. Shambhu Nath on 24.04.2006 vide registered GPA, Agreement to Sell, affidavit, receipt, etc. That after the purchase of the suit property, the plaintiff and his mother constructed the same and his mother started residing in the suit property. That in the year 2004, the husband of defendant no.1 died and thereafter, she started residing with her mother at the suit property. That the parties hereto are the only legal heirs of late Smt. Leela Kaushik having 1/5th share each in the suit property. That after the death of their mother, the defendant no.1 became dishonest as she is having ill eyes on the suit property. That on the occasion of Tehranvi on 18.04.13, the plaintiff asked the defendant no.1 for opening of the box of the deceased mother but she refused to give the keys of the same and started quarreling by stating that she had purchased the suit property from her mother. That the plaintiff and the other relatives requested the defendant no.1 for partition of this suit property but she became adamant and stated that no one has any right over the suit property. That on 19.06.13, the plaintiff came to know that the defendant no.1 was trying to dispose off the suit property as the property dealer was regularly visiting the suit property.
3. In the W/S filed by the defendant no.1, certain preliminary objections were raised like that the plaintiff is neither the CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 3 of 16 owner nor in possession of the suit property; that the plaintiff has concealed the material facts from the court and also filed the case on the basis of forged and manipulated documents; that the suit is without cause of action; that the suit is bad for non-joinder of necessary parties as the defendant no.1 has already sold the suit property to 3rd person on 12.06.2012.
W/S is also filed on behalf of defendant no.4 but did not deny the pleadings of the plaintiff.
4. No replication was filed by the side of plaintiff to the W/S of the defendants.
5. On the basis of pleading of the parties, following issues were framed in this case on 24.09.2014, which are as under :-
(1) Whether the plaintiff is entitled for a decree of partition to the extent 1/5th share in the suit property as prayed in para 1) of the prayer clause? OPP (2) Whether the plaintiff is entitled for a decree of permanent injunction with regard to the suit property as prayed in para 4) of the prayer clause? OPP (3) Whether the plaintiff is entitled for a decree of declaration with regard to the document filed by the defendant in respect of the suit property as null & void ? OPP (4) Whether the plaintiff has concealed and suppressed the material facts as suit is not maintainable in the present CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 4 of 16 form and liable to be dismissed? OPD-1 (5) Whether the documents have been forged and fabricated by the plaintiff and suit is liable to be dismissed on this ground?OPD-1 (6) Whether there is no cause of action arose in favour of the plaintiff to file the present suit and suit is liable to be dismissed U/O 7 R 11 CPC? OPD-1.
(7) Whether the suit of the plaintiff is bad for non-joinder of the necessary parties and is liable to be dismissed on this ground alone? OPD-1 (8) Relief.
6. The plaintiff got examined himself as PW-1 in support of his case. The plaintiff (PW-1), during his examination-in- chief, relied upon various documents i.e. Ex-PW1/1, Ex- PW1/2, Ex-PW1/4 and also Mark A. PE was closed on 28.10.15.
7. The defendant no.1 got examined herself as DW-1. The defendant no.1 (DW-1), relied upon various documents i.e. Ex-DW1/1 (colly) in support of her pleadings. There is no evidence led by other defendants. The defendant no.3 was proceeded ex-parte vide order dt. 02.06.16. The evidence of defendants was closed on 12.04.2023.
8. I perused the judicial file minutely, in view of rival submissions of parties.
CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 5 of 16Issue - wise findings is as under :
Issue No.(4) - Whether the plaintiff has concealed and suppressed the material facts as suit is not maintainable in the present form and liable to be dismissed? OPD-1 & Issue No.(5) - Whether the documents have been forged and fabricated by the plaintiff and suit is liable to be dismissed on this ground?OPD-1
9. Both the issues are inter-connected. Accordingly, for the sake of convenience and to avoid repetition, both are taken up together. The onus to prove the issues was put upon the defendant no.1 and is based on the objections taken in the W/S by the defendant no.1. It is pleaded by the defendant no.1 that the plaintiff has concealed the material facts from the court and also has filed the case on the basis of forged and manipulated documents.
The whole of the W/S, filed by the defendant no.1, is silent as to what were those material facts concealed by the plaintiff from the Court. The W/S is also silent as to what were those material facts which the plaintiff was supposed to disclose in the plaint. Nothing has been brought on record by the defendant no.1 to make the Court believe that the plaintiff has suppressed or concealed any material facts.
The whole of the W/S of defendant no.1 is silent as to what were those documents which have been forged and manipulated by the side of the plaintiff. Hence, in the absence of any specification of the forged and manipulated CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 6 of 16 documents, the Court cannot presume anything in favour of defendant no.1 and against the plaintiff. Moreover, no evidence has been led by the side of the defendant no.1 to make the Court believe that which document was forged and fabricated by the side of the plaintiff.
Accordingly, both the issues are decided against the defendant no.1 and in favour of the plaintiff.
Issue no.(6) - Whether no cause of action arose in favour of the plaintiff to file the present suit and suit is liable to be dismissed U/O 7 R 11 CPC? OPD-1.
10. The onus to prove this issue was put upon the defendant no.1 and is based on the objections raised by the defendant no.1 in her W/S. The law is well settled that while deciding an issue of cause of action, only the averments of the plaint are to be seen and considered. It is a case of partition, declaration and permanent injunction. It is the plea of the plaintiff that his mother died intestate on 08.04.2013 and also that he alongwith the defendants became the co-owners/co-sharers of the suit property.
So, on the basis of the contents of the plaint, it is clear that the suit is with a valid cause of action. The issue is decided accordingly against the defendant no.1 and in favour of the plaintiff.
Issue no.(7) - Whether the suit of the plaintiff is bad for non-joinder of the necessary parties and is liable to be CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 7 of 16 dismissed on this ground alone? OPD-1
11. The onus to prove this issue was put upon the defendant no.1 and is based on the objections raised by the defendant no.1 in her W/S. It is pleaded by the defendant no.1 in para 5 (preliminary objections) that the suit is bad for non- joinder of necessary parties and liable to be dismissed as the suit property has already been sold by the defendant no.1 to some third person on 12.06.12 and since then, the said person is under the ownership and possession over the suit property.
12. It is pertinent to mention here that no replication has been filed by the plaintiff subsequent to the filing of the W/S by the defendant no.1. It is also pertinent to mention here that on 26.09.14, the defendants filed certain documents including copy of GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter and Deed of Will all dt. 12.06.12 executed by defendant no.1 in favour of Sh. Sidh Nath Maurya. It is also pertinent to mention here that the said documents executed by the defendant no.1 in favour of 3rd person i.e. Sh. Sidh Nath Maurya are simply notarized and there is no registered sale deed executed in favour of Sh. Sidh Nath Maurya. This is not in dispute in this case that the suit property belongs to the mother of the parties hereto. It is the case of the plaintiff that all the parties hereto have 1/5th share each in the suit property but as per the defendant no.1, she has sold out the suit property to some 3rd person on 12.06.12. The defendant no.1 did not CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 8 of 16 disclose the name of the said 3rd person nor the description/details of the document, through which it was sold out. Moreover, nothing has come on record as to how the defendant no.1 was competent to sell the suit property which was in the name of her mother.
13. Section 17 of Registration Act makes the registration of the title documents of immovable property compulsory. The plaintiff has valued the suit property to Rs.9,52,200/- (which is above Rs.100/-) and the valuation is not disputed/denied by the defendant no.1 in this case.
14. The defendant no.1 has also placed on record copies of GPA, Agreement of Sell, Affidavit, Receipt, Possession Letter, Deed of Will all dt. 23.06.2011 executed by the mother of the parties hereto in favour of defendant no.1 (notarized). It is pertinent to mention here that nothing was pleaded by the defendant no.1 in her W/S that the suit property was sold out to her by her mother. It is only for the first time, the defendant no.1 has stated in para no.6 of her evidence affidavit that her mother has sold out the suit property to her on 24.06.2011. Admittedly, the defendant no.1 is not having any registered title in her name executed by her mother. Accordingly, the documents existing with the defendant no.1 have no value since the same are not registered nor there is any sale deed in her favour.
15. If it is presumed that the defendant no.1 has sold out the CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 9 of 16 suit property to Sh. Sidh Nath Maurya, the same is not acceptable for two reasons, firstly, for the want of registered documents (which is mandatory as per the Section 17 of Registration Act) and secondly, the defendant is not the registered owner of the suit property and accordingly, she was not competent to execute any sale deed in favour of anyone. Law is well settled that no one can transfer a better title than what he/she has.
16. For the sake of arguments, if it is presumed that the said GPA, Agreement to Sell, Affidavit, etc. were executed by the defendant no.1 in favour of Sh. Sidh Nath Maurya, the same have no value for the aforesaid reasons and the transaction, if any is illegal and accordingly, there is no need to implead said Sh. Sidh Nath Maurya in this case.
So, the issue is decided against the defendant no.1 and in favour of the plaintiff.
Issue no.(1) - Whether the plaintiff is entitled for a decree of partition to the extent 1/5th share in the suit property as prayed in para 1) of the prayer clause? OPP, Issue no.(2) - Whether the plaintiff is entitled for a decree of permanent injunction with regard to the suit property as prayed in para 4) of the prayer clause? OPP & Issue no.(3) - Whether the plaintiff is entitled for a decree of declaration with regard to the document filed by the defendant in respect of the suit property as null & CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 10 of 16 void ? OPP
17. All the issues are inter-connected. Accordingly, for the sake of convenience and to avoid repetition, all are taken up together. The onus to prove the same was put upon the plaintiff. It is the plea of the plaintiff that the parties hereto are real brother and sisters, whose mother died intestate on 08.04.13. It is also the plea of the plaintiff that their mother has purchased the suit property and after its purchase, the same was constructed. It is also the plea of the plaintiff that in the year 2004, the husband of defendant no.1 died and thereafter, she started residing with her mother at the suit property. It is also the plea of the plaintiff that the parties hereto are the only legal heirs of late Smt. Leela Kaushik having 1/5th share each in the suit property.
It is the plea taken by the defendant no.1 that the plaintiff is neither the owner nor in possession of the suit property and has concealed the material facts from the Court. It is also the plea taken by the defendant no.1 that the plaintiff has based her case on the basis of forged and manipulated documents and that the suit is bad for non- joinder of necessary parties. It is also the plea taken by the defendant no.1 that she has already sold out the suit property on 12.06.12.
18. The plaintiff (PW1), during his examination-in-chief, re- iterated and re-affirmed the contents of the plaint. During his cross-examination dt. 13.07.2015 (at page no.2), it was admitted to be correct by him that his father purchased the CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 11 of 16 suit property in the year 2006 in the name of his mother from Sh. Shambhu Nath. It is also admitted to be correct by him that his mother was not suffering from any critical/serious disease and that he does not have any knowledge that his mother had sold the suit property to his sister on 24.06.2011 and that he does not have any knowledge that his sister had sold the suit property to anyone.
During his subsequent cross-examination dt. 28.10.15 (at page no.1), it was admitted to be correct by him that he was residing separately from his mother. At page no.2, it was also deposed by him that he do not have knowledge whether the defendant no.1 sold the suit property to Sidh Nath Maurya on 12.06.12 and also that he was not having any knowledge that the defendant no.1 had executed the title documents in favour of Sh. Sidh Nath Maurya.
19. In her evidence affidavit, the defendant no.1 (DW-1), re- iterated and re-affirmed the contents of the W/S but while under cross-examination dt.12.04.2023 (at page no.1), it was deposed by her that the sale consideration amount was managed by her after the sale of a plot of 25 sq. yds., which was sold by her. It was also deposed that she do not possess any document right now to show that any plot was sold out by her at that time. It was also admitted to be correct by her that her mother died in the suit property itself and also that the suit property was not sold to anyone by her.
CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 12 of 16It is pertinent to mention here that in para 10 of W/S (Reply on Merits), it is pleaded by the defendant no.1 that the suit property has already been sold out on 12.06.22.
20. During her subsequent cross-examination at page no.2, it was deposed by her that he can produce the witness to show that the sale consideration was given by him to his mother or that the documents were duly prepared. It was also deposed that he don't remember the name of the said witness.
21. It was held by Hon'ble Apex Court in 'Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr'. SLP No.13917 of 2009 -
"13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law ...................................................... .................."
"16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
Transactions of the nature of `GPA sales' CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 13 of 16 or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
22. On the basis of the pleadings of the parties and the evidence lead by them, it is clear that Late Smt. Leela Kaushik was survived with her children i.e. the plaintiff and the defendants. This is not in dispute that the father of the parties hereto predeceased to their mother. Now, with the death of Smt. Leela Kaushik, only the son and daughter of the deceased i.e. the present parties hereto, remain the co-owner / co-sharers of the suit property having 1/5 th share each. Accordingly, it is held that the plaintiff and the defendants are entitled to 1/5th share each in the suit property.
CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 14 of 16Accordingly, in view of above, the issue no.1 to 3 are decided in favour of the plaintiff and against the defendants.
Issue No.(8) - RELIEF :
23. In view of the findings of this Court on the issue no.1 to 7 (Supra), the suit is decreed with the following reliefs:-
i) A preliminary decree is passed thereby giving 1/5 th share to each of the plaintiff and the defendants in the suit property i.e. Khasra No.16/20, situated in the Village abadi Nithari Colony, now known as House No.10, D Block, Baljit Vihar, Delhi, measuring area 72 sq. yards, as shown red in the site plan;
ii) A decree of declaration in favour of plaintiff and against the defendants that the documents in respect of the suit property in favour of the defendants as null and void;
iii) A decree of permanent injunction in favour of plaintiff and the defendant no.1 is hereby passed and defendant no.1 is restrained from selling, transferring and creating any third party interest in respect of the abovesaid property i.e. Khasra No.16/20, situated in the Village abadi Nithari Colony, now known as House No.10, D Block, Baljit Vihar, Delhi, measuring area 72 sq. yards, subject to the orders of the Court for implementation of the preliminary and final decree in the suit. Parties are left CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 15 of 16 to bear their own costs. Decree sheet be prepared.
For taking further steps for passing of a final decree, let, the parties give their necessary suggestions on/before the next date as to whether the property should be partitioned by metes and bounds or should be sold or what should be the method and manner for passing of a final decree of partition with respect to the aforesaid suit property.
Preliminary decree-sheet be, accordingly, prepared.
Announced in the Open Court on 24th of June, 2023. Digitally signed by RAJINDER RAJINDER KUMAR KUMAR Date:
2023.06.24 15:32:11 +0530 (RAJINDER KUMAR) Additional District Judge-2 (North-West) Rohini Courts: Delhi.CS DJ No.30/2020 Vijay Kumar Kaushik Vs. Usha Devi & Ors. Page 16 of 16