Delhi District Court
Rajesh Kumar Jain vs Munni Devi on 30 May, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURT, DELHI
CS 105/16
CNR DLNE01-000572-2016
RAJESH KUMAR JAIN
S/O LATE DHAN PAL JAIN
R/O HOUSE NO H-50/A, FIRST FLOOR
GALI NO.4, BRAHAMPURI
DELHI-110053
....PLAINTIFF
V
1. MUNNI DEVI
W/O LATE DHAN PAL JAIN
R/O HOUSE NO X-7/50, GALI NO.9
BRAHAMPURI, SEELAMPUR
DELHI-110053
2. ANIL KUMAR JAIN
S/O LATE SH. DHAN PAL JAIN,
R/O HOUSE NO X-7/50, GALI NO.9
BRAHAMPURI, SEELAMPUR
DELHI-110053
3. VINOD KUMAR JAIN
S/O LATE DHAN PAL JAIN,
R/O HOUSE NO X-7/50, GALI NO.9
BRAHAMPURI, SEELAMPUR
DELHI-110053
4. MEENU JAIN
W/O SH. VINOD KUMAR JAIN
R/O HOUSE NO X-7/50, GALI NO.9
BRAHAMPURI, SEELAMPUR
DELHI-110053
5. LATA JAIN
W/O SH. NEMI CHAND JAIN
R/O GHATI GALI, ABDUL LATIF LANE
NEAR ORIENTAL LODGE, ASANSOL
DISTRICT VARDHMAN
WEST BENGAL-713301
CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 1/27
6. UMA JAIN
W/O SH. SUBHASH CHAND JAIN
R/O HOUSE NO C-63, GALI NO.5
BHAGAT SINGH MOHALLA
NEW USMANPUR
DELHI-110053
7. DEEPA JAIN @ NEHA JAIN
W/O SH. SANJAY JAIN
R/O HOUSE NO X-284, GALI NO.2
BRAHAMPURI
DELHI-110053
8. POONAM JAIN
W/O SH. NEERAJ JAIN
R/O H. NO 254, GALI NO.16
GULAB VATIKA, LONI
GHAZIABAD, UP
..........DEFENDANTS
INSTITUTION: 11.02.2016
ARGUMENTS: 06.02.2020
JUDGMENT:30.05.2020 SUIT FOR PARTITION, POSSESSION AS CONSEQUENTIAL RELIEF OF DECLARATION AND PERMANENT INJUNCTION JUDGMENT
1. Late Dhan Pal Jain (hereinafter referred to as "the deceased") was owner of house bearing no. X-7/50, Gali No 9, Brahampuri, Seelampur, Delhi-110053 measuring 100 sq. yards (hereinafter referred to as "the suit property"). The plaintiff, the defendant no.2 and the defendant no 3 are sons of the deceased. The deceased was also having another son namely Neeraj Kumar Jain who died in the year 1995. The defendant no 1 is wife of the deceased and mother of the plaintiff, the defendant no 2 and the defendant no 3. The plaintiff, the defendant no 2 and the defendant no 3 are real brothers. The defendant no 5 to 8 are married daughters of the deceased and the defendant no 1 and sisters of the plaintiff and the defendant no 2 and 3. The defendant no.2 is the elder brother and got married in CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 2/27 the year 1990. The defendant no 2 was emotionally controlling the plaintiff and the defendant no.3 who in year 1990 were minor and unmarried. The defendant No. 2 obtained signatures of the plaintiff and the defendant no.3 on some blank papers with intention to cheat the plaintiff. The plaintiff and the defendant no.1 were in the joint possession of the suit property. The plaintiff filed a suit bearing no 89/13 titled as Rajesh Kumar V Munni Devi and at the time of filing of previous suit bearing no 89/13 was residing therein. The defendant no 2 started to harass and quarrel with the children of plaintiff and due to this the plaintiff left the room under his possession in suit property after locking his goods in said room. The plaintiff also filed a complaint in Police Station New Usmanpur on 23.01.2013. The defendant no.2 in collusion with the defendant no.3 wanted to sell the suit property without the consent and permission of the plaintiff. The defendant no 2 during the pendency of suit bearing no.89/13 created third party interest as the defendant no.2 executed Family GPA and Deed of Will/ family on 25.04.2013 in favour of defendant no.3 which was registered on 04.05.2013. Thereafter the defendant no.3 executed a Family General power of Attorney in favour of his wife i.e. the defendant no.4 which was registered on 06.06.2013. The deceased also purchased another property bearing no X-11/2-B, Kh. No.718-719, Gali No.10, Near Moni Baba Mandir, Brahampuri, Delhi-110053 in the name of the defendant no 4. The plaintiff is requesting the defendant no.1 to 3 to partition the suit property but the defendant no.2 and 3 did not partition suit property on one pretext or the other. The plaintiff served a legal notice dated 16.12.2013 on the defendant no1 to 3. The plaintiff came to know that the defendant no1 and 3 executed Relinquishment Deed, GPA, Agreement to Gift and affidavit in favour of the defendant no 2. The plaintiff also lodged a complaint with the police station on 31.03.2013 as the defendant no 2 and 3 broke open the lock of the room of the plaintiff and removed the goods of the plaintiff from said room. The plaintiff on 19.05.2013 lodged the complaint against the defendant no.2 for his illegal and unwanted acts and also forging and fabricating documents. The plaintiff filed an application under Order 1 Rule 10 CPC for impleading the defendant no.4 as party in suit no 89/2013 which was allowed. The concerned court in suit no 89/2013 vide order dated 26.05.2015 observed that the suit no 89/2013 was undervalued and returned the plaint under Order VII Rule 10 CPC with direction to file suit CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 3/27 before High Court of Delhi within one month. The plaintiff could not file fresh suit before the High Court of Delhi. The defendants first time disclosed the fabrication of the documents in reply to the notice of the plaintiff and at the time of filing the joint written statement by showing the transfer of the property in favour of defendant no.4 on 06.06.2013. The plaintiff being aggrieved filed the present suit and prayed as under:-
a) A decree of partition may be passed in favour of plaintiff and against the defendants partitioning thereby the suit property in equal shares between the defendant no.1 to 3 and the plaintiff i.e. 1/4 th share each in the property bearing no.X-7/50, Gali No.9, Brahampuri, Seelampur, Delhi-110053 by metes and bounds as shown in the site plan attached, in the interest of justice.
b) A declaratory decree may be passed in favour of the plaintiff and against the defendant no.1 to 3, declaring thereby that the relinquishment deed dated 05.03.1998, a General Power of attorney dated 05.03.1998 and Agreement to Gift along with an affidavit for no objection alleged to have been executed by the defendant no.1, 3 and plaintiff in favour of defendant no.2 are null and void and not binding upon the plaintiff and to declare that the alleged KHATIPURTI PATRA dated 30.11.2017 alleged to have been executed by the plaintiff along with receipt of Rs.4,00,000/- is null and void, forged and fabricated and not binding upon the plaintiff and further be declared that the alleged General Power of Attorney executed by the defendant no.2 dated 25.04.2013 in favour of the defendant no.3 and the General Power of attorney executed by the defendant no.3 in favour of the defendant no.4 are null and void without any legal power and capacity and are not binding upon the plaintiff.
c) A decree of permanent injunction may also be passed in favour of plaintiff and against the defendants restraining thereby the defendants from imposing any type of encumbrances, selling alienating and parting with possession of the property/ house bearing no.X-7/50, Gali No.9, Brahampuri, Seelampur, Delhi-110053.
d) To award costs of the suit in favour of the plaintiff and against defendants and any other relief as this Hon'ble Court may deems fit and proper in the fact and circumstance of the case.
2. The defendants filed written statements to contest suit. The defendant no1 to 4 in the preliminary objections of their written statement stated that the suit is CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 4/27 based on misrepresentation and concealment of facts. The plaintiff has not filed any site plan. The plaintiff has not claimed relief of possession in previous suit. The present suit is not maintainable and liable to be rejected under Order VII Rule 11 (a) CPC. The suit has not been properly valued and appropriate court fee has not been paid. The suit is not maintainable for non-joinder of necessary parties. The plaintiff earlier filed a suit bearing no CS No.89/13 against the same defendants which was ordered to be returned under Order VII Rule 10 (2) CPC vide order dated 26.05.2015. The plaintiff neither assailed the order dated 26.05.2015 nor complied said order. The plaintiff has left the suit property in 2008 and purchased own house bearing no.V-372, Arvind Nagar, Gali Dispensary, Ghonda, Delhi. The plaintiff was aware that after the demise of the deceased on 12.12.1992, a relinquishment deed was executed by the plaintiff, the defendant no.1 and the defendant no.3 in favour of defendant no.2 in respect of suit property on 05.03.1998 besides executing General power of attorney and Agreement to Gift dated 05.03.1998. The plaintiff got his share in the suit property and later sold his share of 33 sq. yards to the defendant no.3 for Rs.4 Lakhs from the defendant no 3 after executing "Kshatipurti Patra (Indemnity Bond)" along with receipt of Rs.4 Lakhs. The defendant no.3 executed a Family General Power of Attorney in favour of the defendant no 4 in respect of the suit property on 23.04.2013. The defendant no.1 to 4 in reply on merit denied other allegations of the plaintiff. The defendant no 5 to 8 in their written statement raised same preliminary objections as taken by defendant no.1 to 4 and also denied other allegations of the plaintiff.
3. The plaintiff filed replications to written statements filed by defendant no 1 to 4 and defendant no.5 to 8 wherein the plaintiff reasserted and reaffirmed previous stand.
4. The following issues were framed vide order dated 06.10.2016:-
1) Whether the suit is bad due to non-filing of the site plan of the suit property and if so, its consequence? OPD
2) Whether valuation of the suit for the purpose of court fee and jurisdiction is improper? OPD
3) Whether the suit filed is not maintainable due to non-
filing of the same in time as per order dated 26.05.2015 passed in CS NO.89/13 as well as on other grounds taken in the preliminary objections of the written statements? OPD
4) Whether the plaintiff has already relinquished his share in the suit property in favour of defendant no. 3? OPD CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 5/27
5) Whether the plaintiff is entitled for decree for partition in respect of the suit property by metes and bounds, if so, what is the extent of share of the plaintiff in the same? OPP
6) Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP
7) Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for? OPP
8) Relief.
5. The plaintiff examined him as PW-1 and tendered the affidavit which is Ex.PW1/A. The plaintiff relied on documents which are Ex. PW1/1 to Ex. PW1/4, Ex. PW1/6 to Ex.PW1/9. The plaintiff in cross examination was confronted with documents which are Ex.PW1/DX1 to Ex.PW1/DX6. The plaintiff's evidence was ordered to be closed vide order dated 31.01.2018.
The defendant no 1 to 4 examined the defendant no 3 as DW1 who tendered the affidavit which is Ex.DW1/A. The defendant no 3 as DW1 relied on documents which are Ex.DW1/1 to Ex.DW1/7. The defendant evidence was ordered to be closed vide order dated 13.09.2018.
6. Sh. G.A. Madni, Advocate for the plaintiff and Sh. S.K. Jain, Advocate for the defendants heard. Record perused.
7. A burden of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI(2003)SLT307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 6/27 person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues. This view was also accepted in M/S. Gian Chand & Brothers and Another V Rattan Lal @ Rattan Singh, (2013) SCR 601.
ISSUEWISE FINDINGS ARE AS UNDER ISSUE NO 1 Whether the suit is bad due to non-filing of the site plan of the suit property and if so, its consequence? OPD
8. Order VII Rule 3 of the CPC requires that where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it to enables the court to draw a proper decree as required by Order XX Rule 3 of the CPC. Order VII Rule 3 is appearing to be mandatory in nature. The Andhra Pradesh High Court in M.C.V.Prasad & Others V M.Subba Rao & Others, Second Appeal No.1184 of 2012 decided on 13th February, 2013 observed that the subject matter of suit must be clearly described particularly when subject matter of the dispute is immovable property. It is important for executability of a decree. It was further observed as under:-
The correct view appears to be that, if it is found in a suit that the plaintiff did not describe an item of immovable property, which is the subject-matter of the suit, as provided for under Rule 3 of Order VII C.P.C., he can be permitted to seek necessary amendment. At the same time, it is no part of the duty of the Court to remind the plaintiff, of his duty, to ensure that the property, regarding which he is claiming the relief, is properly described. If, in spite of the defect being noticed or detected or pointed out, the plaintiff fails to take CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 7/27 any steps to cure the same, or the steps taken by him do not bring about compliance with the provision of law, the defect would certainly constitute a ground for denial of relief. Such an approach is not only warranted from the point of view of granting the relief in respect of an unknown property, but also would avoid the difficulty, at the stage of execution.
The Supreme Court in Pratibha Singh & another V Shanti Devi Prasad & another, (2003)2 SCC 330 observed that when the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. The Supreme Court in Monoranjan Dutta V Narayan Dhar, 2006 (4) GLT160 observed that the failure to give a description of the suit property by giving boundaries etc. in the plaint is not fatal and can be cured at a later stage. The Supreme Court of India in Executive Officer, Arulmig Chokkanatha Swamy Koil Trust Virudhunagar V Chandran & Ors, Civil Appeal No.2342 of 2017 decided on 10th February, 2017 laid emphasis on proper identification of immoveable property subject matter of suit.
9. The counsel for the defendants argued that the plaintiff did not file site plan of the suit property and as such suit is liable to be dismissed. The counsel for the plaintiff argued that the plaintiff filed site plan Ex.PW1/1 which was relied on by the plaintiff in previous suit bearing no CS 89/2013. The defendants in preliminary objections of the respective written statement stated that the plaintiff has not filed as to present status and possession of the suit property and as such suit is not maintainable and liable to be dismissed. The plaintiff in affidavit Ex.PW1/A tendered in evidence deposed that the deceased was owner of suit property and filed certified copy of the site plan which is Ex.PW1/1. It is admitted between the contesting partied that the plaintiff earlier filed a civil suit for partition, declaration and permanent injunction bearing no CS 89/2013 and during the trial of said suit the plaintiff filed site plan. The plaintiff in present suit relied on certified copy of said site plan which is Ex.PW1/1. In present suit the plaintiff is seeking relief pertaining to suit property which is clearly and properly identifiable from reading of the plaint. The defendants did not dispute identity of the suit property. Mere non
-filing of fresh site plan in present suit is not fatal to the case of the plaintiff. The argument advanced by counsel of the defendant is without any legal force. Issue CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 8/27 no 1 is decided in favour of the plaintiff and against the defendants.
ISSUE NO 2 Whether valuation of the suit for the purpose of court fee and jurisdiction is improper? OPD
10. The counsel for the defendant argued that the present suit is not properly valued for purposes of court fee and jurisdiction. The counsel for the plaintiff argued that suit is properly valued for purposes of court fee and jurisdiction in terms of order dated 26.05.2015. The plaintiff valued present suit for purposes of court fee and jurisdiction for relief of partition at Rs.37,00,000/-. The plaintiff assessed value of land which is measuring 91.44 sq. meters on basis of minimum circle rate which came to Rs. 35,20,440/- and assessed cost of construction as Rs. 1,80,000/-. The plaintiff also assessed present suit for relieves of declaration and injunction. The plaintiff paid court fee accordingly. The defendants stated that suit is not properly valued for purposes of court fee and jurisdiction. The plaintiff earlier filed a suit for partition, declaration and permanent injunction titled as Rajesh Kumar Jain V Munni Devi & Others bearing no 89/13 against the defendant no 1 to 4. The defendant no 1 to 4 in said suit filed an application under Order VII Rule 10 & 11 for rejection/return of plaint. Vide order dated 26.05.2015 passed by the court of Additional District Judge -01 (N-E) assessed cost of land on basis of minimum circle rates as Rs. 35,20,440/- and observed that said court did not have pecuniary jurisdiction to try the suit. The plaintiff assessed present suit at Rs.37,00,000/- besides assessing suit for relieves of declaration and permanent injunction. The suit is properly valued for purposes of court fee and jurisdiction. Issue no 2 is decided in favour of the plaintiff and against the defendants.
ISSUE NO 3 Whether the suit filed is not maintainable due to non-filing of the same in time as per order dated 26.05.2015 passed in CS NO.89/13 as well as on other grounds taken in the preliminary objections of the written statements? OPD
11. The defendants in the preliminary objections also stated that the suit is based CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 9/27 on misrepresentation and concealment of facts. The plaintiff has not claimed relief of possession in previous suit. The present suit is not maintainable and liable to be rejected under Order VII Rule 11 (a) CPC. The suit is not maintainable for non- joinder of necessary parties. The counsel for the defendant argued that suit is liable to be dismissed in view of preliminary objections.
The plaintiff earlier filed a suit bearing no 89/13 against the defendant no 1 to 4 wherein the defendant no 1 to 4 filed an application under Order VII Rule 10 & 11 for rejection/return of plaint. Vide order dated 26.05.2015 passed by the court of Additional District Judge -01 (N-E) it was observed that said court did not have pecuniary jurisdiction to try the suit and returned the plaint under Order VII Rule 10 (2) CPC with the direction to file the plaint before High Court of Delhi within one month. The plaintiff did not present the plaint after properly valuing suit before High Court of Delhi within one month. The plaintiff pleaded that due improper legal advice and laxity of previous counsel the plaintiff did not present plaint within time in pursuance of order dated 26.05.2015. The present plaint is filed on 11.02.2016 before the court of the District & Sessions Judge after enhancement of pecuniary jurisdiction. If the plaintiff did not and could not present plaint after return in pursuance of order 26.05.2015 and filed fresh suit it may be irregularity but not illegality. It is not fatal to the plaintiff.
12. The defendant pleaded that suit is based on misrepresentation and concealment of facts. The Supreme Court of India in Arunima Baruah V Union of India & others, Appeal (civil) 2205 of 2007 decided on 27th April, 2007 considered how far and to what extent suppression of fact by way of non- disclosure would affect a person's right of access to justice. The appellant filed a suit in the District Court but no order of ad-interim injunction was passed. The appellant filed a writ peti- tion before the High Court without disclosing pendency of the said suit. The ap- pellant before hearing of writ petition filed an application for withdrawal of the suit. The suit was allowed to be withdrawn after hearing of writ petition. The writ petition was dismissed by High Court due to concealment of fact by the petitioner and forum hunting. The appeal was also dismissed. It was observed as under:-
(t)o enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 10/27 disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case.
Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.
The plaintiff disclosed material facts and the plaintiff did not conceal any material fact.
13. The plaintiff also impleaded all surviving legal heirs of the deceased who was owner of the suit property and died intestate. The plaintiff also impleaded defendant no 4 in whose favour the defendant no3 transferred the suit property. The suit is not bad for non-joinder of necessary parties.
The case of the plaintiff can be dismissed if it is without an adequately stated cause of action. A cause of action is essential to a civil suit since without a cause of action a civil suit cannot arise. The plaintiff in the plaint stated all relevant facts which are necessary to constitute cause of action. The suit is not liable to be dismissed in view of preliminary objections as taken by the defendants. Issue no 3 is decided in favour of the plaintiff and against the defendants.
ISSUE NO 4 Whether the plaintiff has already relinquished his share in the suit property in favour of defendant no. 3? OPD
14. The plaintiff primarily pleaded that the deceased was owner of the suit property. The defendant no.2, elder brother of the plaintiff and the defendant no 3 obtained signatures of the plaintiff and the defendant no.3 on some blank papers with intention to cheat the plaintiff. The plaintiff filed a suit for partition, declaration and permanent injection bearing no.89/2013 titled as Rajesh Kumar CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 11/27 V Munni Devi & Others against the defendant no 1 to 4 and the defendant no 2 during the pendency of said suit created third party interest by executing Family GPA and Deed of Will/ family on 25.04.2013 in favour of defendant no.3 which was registered on 04.05.2013. Thereafter the defendant no.3 executed a Family General power of Attorney in favour of his wife i.e. the defendant no.4 which was registered on 06.06.2013. The plaintiff came to know that the defendant no1 and 3 executed Relinquishment Deed, GPA, Agreement to Gift and affidavit in favour of the defendant no 2. The defendant no.2 and 3 did not partition the suit property despite request of the plaintiff. The counsel for the plaintiff argued that documents as relied on by the defendants are without any legal force as the defendant no 2 obtained signatures of the plaintiff on few blank papers which were later on converted in Relinquishment Deed and other documents to the detriment of the interests of the plaintiff in suit property.
The plaintiff as PW-1 in affidavit Ex.PW1/A deposed facts as stated in the plaint. The plaintiff in cross-examination deposed that he had not resided in the suit property after the year 2007. The plaintiff executed a relinquishment deed in favour of the defendant no 2 on 05.03.1998 but stated that his elder brother Neeraj Kumar Jain expired in the 1996-1997 and thereafter the defendant no 2 asked him to execute the relinquishment deed in his favour so that the legal heirs of Neeraj Kumar Jain may not ask for their share in the suit property. The plaintiff admitted his signatures and thumb impressions on original Relinquishment Deed dated 05.03.1998 Ex.PW1/DX1, General Power of Attorney Ex.PW1/DX2, Agreement to gift Ex.PW1/DX3 and Affidavit Ex.PW1/DX4 at points A. The plaintiff as PW1 admitted his signatures on Indemnity Bond Ex.PW1/DX5 and Receipt Ex. PW1/DX6 dated 30.11.2007 but stated that his signatures were obtained on blank papers. The plaintiff denied suggestions that defendant no.3 gave Rs.4 Lakhs at the time of execution of documents Ex.PW1/DX5 and Ex.PW1/DX6 or that he never remained in possession of the suit property since year 2007. The plaintiff the defendant no 3 had given only Rs. 3 lakhs for his treatment. The plaintiff denied suggestions that his signatures were not taken on blank papers or that the defendants never forged and fabricated any document.
15. The defendants in respective written statements alleged that the plaintiff has CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 12/27 left the suit property in 2008. The plaintiff, the defendant no.1 and the defendant no.3 executed a Relinquishment Deed in favour of defendant no.2 in respect of suit property on 05.03.1998 besides executing General power of attorney and Agreement to Gift dated 05.03.1998 in favour of the defendant no.2. The plaintiff also took Rs.4 Lakhs from the defendant no 3 after executing "Kshatipurti Patra (Indemnity Bond)" and receipt. The defendant no.3 executed a Family General Power of Attorney in favour of the defendant no 4 in respect of the suit property on 23.04.2013. The counsels for the defendants argued that the plaintiff, the defendant no 1 and the defendant no 3 executed Relinquishment deed in favour of the defendant no 2 and subsequently the plaintiff also accepted Rs. 4 lacs from the defendant no 3 on execution of indemnity Bond and Receipt.
The defendant no 3 in affidavit Ex. DW1/A deposed facts as stated in written statement and relied upon the documents Ex. DW1/1 to Ex. DW1/7. The defendant as DW1 in cross examination deposed that the deceased did not partition the suit property and never executed any document in favour of any person in respect of the suit property. The documents Ex.PW1/DX1, Ex.PW1/DX2 and Ex.PW1/D3 were executed in favour of the defendant no 2. DW1 denied the suggestions that these documents were executed only to deny share in the suit property to wife of Neeraj Kumar Jain or that no partition of the suit property took place on 30.11.2007 or that the plaintiff never sold his share in the suit property to defendant no.3 or that the plaintiff never received Rs.4 Lacs from defendant no.3 as sale consideration of his share or that the documents Ex.PW1/DX5 and Ex.PW1/DX6 were also executed on 05.03.1998 for denying the wife of Neeraj Kumar Jain her share in the suit property or that the defendants have forged and fabricated the various documents in connivance with each other to deny the plaintiff share in the suit property or that partition of the suit property had not taken place.
16. The facts which are emerging from critical and analytical reading of the pleadings and evidence including cross examination of the plaintiff and the defendant are that the deceased, the predecessor in interest of the plaintiff and the defendants except the defendant no 4, was owner of the suit property. The deceased died intestate and did not partition the suit property among legal heirs. The plaintiff resided in suit property till 2007. The defendant no 5 to 8 who are married CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 13/27 daughters of the deceased never claimed their shares in the suit property although they did not relinquish their respective shares specifically in favour of either the plaintiff or the defendant no 1 to 3.
17. The plaintiff is claiming 1/4 share in the suit property. The defendants stated that the plaintiff, the defendant no 1 and the defendant no 3 have relinquished respective share in favour of the defendant no 2 on execution of Relinquishment Deed Ex.PW1/DX1, General Power of Attorney Ex.PW1/DX2, Agreement to Gift Ex.PW1/DX3 and Affidavit for No Objection Ex.PW1/DX4. However the plaintiff stated in plaint and deposed in affidavit Ex.PW1/A that the defendant no.2 who is elder brother of the plaintiff and the defendant no 3 was emotionally controlling the plaintiff and the defendant no.3 and obtained signatures of the plaintiff and the defendant no.3 on some blank papers with intention to cheat the plaintiff. The plaintiff in cross examination admitted that he executed a relinquishment deed in favour of the defendant no 2 on 05.03.1998 but qualified his admission by stating that his elder brother Neeraj Kumar Jain expired in the 1996-1997 and thereafter the defendant no 2 asked him to execute the relinquishment deed in his favour so that the legal heirs of Neeraj Kumar Jain may not ask for their share in the suit property. The plaintiff did not mention these facts in the plaint that he executed relinquishment deed Ex.PW1/DX1 on asking of the defendant no 2 with object to deny share in suit property to legal heirs of deceased brother Neeraj Kumar Jain. These facts are material facts needed to be included in the pleadings. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012)5SCC370, the Supreme Court laid stress on purity of pleadings in civil cases. It was observed that pleadings are extremely important in civil cases and in order to do justice, it is necessary to give all details in the pleadings. This view was again reaffirmed in A. Shanmugam V Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012)6SCC430. The defendant no 3 as DW1 was not cross examined by the plaintiff that the defendant no 2 has obtained his signatures on few blank papers which is fatal to case of the plaintiff. The right of cross- examination is one of the most powerful instrumentalities in the conduct of litigation. The cross examination is not merely a technical rule of evidence but it is a rule of essential justice as it serves to prevent surprise at trial and miscarriage of justice. It was observed in A.E.G. Carapiet V A. Y. Derderian, AIR1961Cal.359 CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 14/27 that whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in the cross examination, it must follow that he believed that the testimony given, could not be disputed at all. The Supreme Court in M.B Ramesh V K.M Veeraje, 2013 (2) RCR Civil 932 also reiterated similar legal view.
18. Regarding legal value of unsigned blank documents, the Supreme Court in Bir Singh V Mukesh Kumar, Criminal Appeal Nos. 230-231 of 2019 in SLP (Criminal) Nos. 9334-35 of 2018 decided on 6th February, 2019 observed in context of issuance of a blank signed cheque that if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. In Hari Om Gupta V Ifb Industries Ltd, RFA 501/2014 decided on 15th October, 2014 decided by the High Court of Delhi the appellant did not state that cheques were not issued by him and did not dispute signatures on the cheques, it was observed that as regards plea of handing over the blank signed cheques is concerned, same does not raise any tribal issue. Merely pleading that the cheques were signed in blank and handed over is not sufficient to be entitled to an opportunity to lead evidence. The same presumption rule applies to the pleas of having signed and delivered papers in blank. It was held that Trial Court has rightly held that plea of signing of blank document does not raise any tribal issue. Relinquishment Deed Ex.PW1/DX1, General Power of Attorney Ex.PW1/DX2, Agreement to gift Ex.PW1/DX3 and Affidavit Ex.PW1/DX4 were executed on stamp papers which were purchased on 05.03.1998 and not on blank papers as alleged by the plaintiff. The plea of petitioner that the defendant no 2 obtained his signatures on blank papers does not inspire any confidence. Moreover the plaintiff also admitted his signatures and thumb impressions on original Relinquishment Deed Ex.PW1/DX1, General Power of Attorney Ex.PW1/DX2, Agreement to gift Ex.PW1/DX3 and Affidavit Ex.PW1/DX4 at points A. The burden was on the plaintiff to prove that the defendant no 2 obtained his signatures on blank papers which the plaintiff could not discharge.
19. The plaintiff admitted execution of Relinquishment Deed Ex.PW1/DX1 although with qualified words as mentioned hereinabove. Once the plaintiff CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 15/27 admitted execution of Relinquishment Deed Ex.PW1/DX1 then oral submissions regarding signing of blank papers by the plaintiff at the instance of the defendant no 2 cannot be entertained. Moreover the defendant no 1 and the defendant no 3 did not support said plea of the plaintiff. The documentary evidence consists of any information that can be introduced at trial in the form of documents. Section 91 and 92 of The Indian Evidence Act, 1872 dealt with exclusion of oral evidence by the documentary evidence. Section 91 provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other nature of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under legal provisions. The document is the best evidence to prove any fact or related facts. Section 91 prohibits the proof of the contents of a written document otherwise than by the written documents itself. Sections 91 and 92 are based on the "best evidentiary rule". Section 92 deals with exclusion of evidence of oral agreement and provides that when the term of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the section 91, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their legal representatives in interest, for the purpose of contradicting, varying adding to, or subtracting from, its term. Section 92 excludes evidence of any oral agreement or statement when in the term of a contract, grant or disposition of property or any matter required by law to be in writing have been proved under Section 91 for the purpose of contradicting, varying, adding to or subtracting from its term of contract. It lays down that when the terms of any such document have been proved by the primary or secondary evidence of the document, no evidence of any oral agreement or statement shall be entertained. Oral evidence has lesser value than documentary evidence. The court is bound to accept the documentary evidence as value of documentary evidence is higher than oral evidence. Sections 91 and 92 exempt oral evidence by documentary evidence. The Supreme Court in Roop Kumar V Mohan Thedani, (2003) 6 SCC 595, commented on section 91 of the Evidence Act by observing as CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 16/27 under:-
This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known sometimes as the ―best-evidence rule.
This rule is based upon an assumed intention on the part of the contracting parties, evidenced by the existence of the written contract, to place themselves above the uncertainties of oral evidence and on a disinclination of the courts to defeat this object.
In Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun through Its Secretary V Bipin Kumar & Another, (2004) 2 SCC 283 observed that Section 92 of the Evidence Act precludes a party from leading evidence contrary to the terms of a written document and to permit a party to so urge would be to give a premium to dishonesty. The Delhi High Court in Karan Madaan & Others V Nageshwar Pandey, CS(OS) 1633/2012 decided on 26th March, 2014 observed that the spirit and purpose of enacting Section 91 and 92 of the Indian Evidence Act, 1872 is to render the written contract, grant or other disposition the sole repository of the terms contained therein. It was observed as under:-
Section 92 of the Evidence Act, inter alia, provides that where the terms of a grant or other disposition of property have been proved according to Section 91 - and in this case the execution and registration of the instrument of sale is not disputed by the defendant, no evidence of any oral agree- ment, or statement shall be admitted, as between the parties to such instrument, for the purpose of contracting, varying, adding to or subtracting from its terms.
20. If a person dies intestate then the property of said person is inherited by legal heirs. If some of legal heirs wish to separate the property further, they can resort to relinquishment deed which allows smooth transfer of property. Relinquishment deed is a legal document where a legal heir gives up his legal rights in an inherited parental property to another legal heir. The process of transferring property from one co-owner to another co-owner with or without any consideration is known as "Relinquishment of Property". The relinquishment of property can only be done in the name of a person who is the co-owner of the property. Relinquishment of property cannot be made in favour of a person other than the co-owner.
CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 17/27 Relinquishment Deed must be signed by all the parties and at least two witnesses. Relinquishment deed required compulsory registration under Section 17 of the Registration Act, 1908. A relinquishment deed can be set aside on grounds of fraud, undue advantage, misrepresentation or similar grounds. A relinquishment deed cannot be set aside merely on the ground that while executing the deed, the executant was willing but now he is not willing.
21. The Supreme Court in Yellapu Uma Maheswari & Anr V Buddha Jagadheeswararao & Ors, (2015) 16 SCC787after considering decision of the larger Bench of the Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy V Chinnappa Reddy Gari Vankat Reddy, AIR 1969 AP 242 held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e., severancy of title, nature of possession of various shares but not for the primary purpose i.e., division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose until the same is impounded. The Telangana High Court in B. Raghupathi V M. Hari, Civil Revision Petition No.3561 of 2011 decided on 23 November, 2018 observed that the relinquishment of right in respect of immovable property through a document which is compulsorily registerable and if the same is not registered becomes an inadmissible document as envisaged under Section 49 of the Registration Act. The documents which squarely fall within the ambit of Section 17(1) (b) of the Registration Act are compulsorily registerable and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. It was further observed that the unstamped and unregistered Relinquishment Deed can be received in evidence showing the transfer of rights and nature of possession under the unstamped unregistered Relinquishment Deed.
Even though the unstamped unregistered Partition Deed and unstamped unregistered Relinquishment Deed can be received in evidence for collateral purpose on impounding those documents. Reference can also be made of the decision delivered by the Andhra High Court in Akula Sangappa V Bandam Siddappa, Second Appeal No.106 of 2011 decided on 30th October, 2015.
22. Relinquishment Deed Ex PW1/DX1 perused. Relinquishment Deed Ex.
CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 18/27 PW1/DX1 was executed by the plaintiff, the defendant no 1 and the defendant no 3 on 05.03.1998 in favour of the defendant no 2 whereby the plaintiff, the defendant no 1 and the defendant no 3 relinquished their share in favour of the defendant no
2. It is not proved that Relinquishment Deed Ex.PW1/DX1 is outcome of fraud, misrepresentation or undue advantage. Relinquishment Deed Ex.PW1/DX1 is not registered as per section 17 of the Registration Act, 1908 rather it is only notarized. Relinquishment Deed Ex.PW1/DX1 is not unstamped but may not be properly stamped. Relinquishment Deed Ex.PW1/DX1 may not be admissible in evidence or can be read even for collateral purpose but its execution is proved beyond any objection. However Relinquishment Deed Ex.PW1/DX1 when read with General Power of Attorney Ex.PW1/DX2, Agreement to gift Ex.PW1/DX3 and Affidavit Ex.PW1/DX4 reflects that the plaintiff along with the defendant no1 and the defendant no3 relinquished his share in the suit property which is also not disputed by the defendant no 1 and the defendant no 3.
23. The defendants alleged that the plaintiff got his share in the suit property and later sold his share of 33 sq. yards to the defendant no.3 for Rs.4 Lakhs from the defendant no 3 after executing "Kshatipurti Patra (Indemnity Bond)" along with receipt of Rs.4 Lakhs. The defendant no 3 in affidavit Ex.DW1 tendered in evidence also deposed these facts. The plaintiff pleaded that the defendant no 2 during the pendency of suit bearing no.89/13 created third party interest as the defendant no.2 executed Family GPA and Deed of Will/ family on 25.04.2013 in favour of defendant no.3 which was registered on 04.05.2013 and thereafter the defendant no.3 executed a Family General power of Attorney in favour of his wife i.e. the defendant no.4 which was registered on 06.06.2013. The plaintiff in affidavit Ex.PW1/A also deposed said facts.
The defendant no 3 was cross examined at length regarding execution of Kshatipurti Patra (Indemnity Bond) Ex.PW1/DW5 and receipt of Rs.4 Lakhs Ex.PW1/DX6. DW1 in cross-examination denied that the plaintiff had never sold his share of 33 sq. yards in the suit property to defendant no.3 or that the plaintiff never received Rs.4 Lacs from defendant no.3 as sale consideration of his share or that the documents Ex.PW1/DX5 and Ex.PW1/DX6 were also executed on 05.03.1998 for denying the wife of Neeraj Kumar Jain her share in the suit property or that the defendant no 3 along with other defendants have forged and CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 19/27 fabricated the various documents in connivance with each other to deny the plaintiff's share in the suit property. The plaintiff in cross examination admitted his signatures on Indemnity Bond Ex.PW1/DX5 and Receipt Ex. PW1/DX6 dated 30.11.2007 but stated that his signatures were obtained on blank papers. The plaintiff denied suggestion that defendant no.3 gave Rs.4 Lakhs at the time of execution of documents Ex.PW1/DX5 and Ex.PW1/DX6 but admitted that the defendant no 3 gave only Rs. 3 lakhs for his treatment. The plaintiff denied suggestions that his signatures were not taken on blank papers or that the defendants never forged and fabricated any document. The cross examination of the plaintiff reflects that he has taken money from the defendant no3 but it is not proved or pleaded by the plaintiff that he has taken Rs.3 lakhs from the defendant no 3 for his treatment. The plaintiff also admitted his signatures on Ex.PW1/DX5 and Ex.PW1/DX6. The plea of the plaintiff does not inspire any confidence that his signatures were obtained on blank papers. The perusal of Ex.PW1/DX5 and Ex.PW1/DX6 reflects that these documents were executed on 30.11.2007 in presence of Tanuja Jain and Kamla Devi as witnesses. The defendants stated that Tanuja Jain is wife of the plaintiff. The plaintiff did not produce her wife Tanuja Jain as a witness to prove that she did not sign Indemnity Bond Ex.PW1/DX5 and Receipt Ex.PW1/DX6 as witness. The plaintiff in cross examination admitted that he left the suit property in 2007. The plaintiff never initiated any legal action against the defendant no 2 that the defendant no 2 obtained his signatures on blank papers to cheat him.
24. The documents Ex. PW1/DX1 to Ex. PW1/DX6 also need consideration from another angle although not pleaded and argued by either of the counsel. The documents Ex. PW1/DX1 to Ex. PW1/DX6 are reflective of family arrangement and settlement regarding suit property among the parties to the suit. In joint families the properties are divided or partitioned on execution of documents which may not stand with test of judicial scrutiny but these documents reflect intention of family members to partition joint properties. A family arrangement can be said to be is an agreement between members of the family for the benefit of the family either by compromising doubtful or disputed right or by preserving the family property by avoiding litigation. A family settlement or a family arrangement if CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 20/27 found to be bona fide, voluntary, without coercion, influence, misrepresentation and stands acted upon, it deserves to be uphold and accepted by the courts, even if it involves release or relinquishment or surrender of disposition, assignment, or transfer. The courts as a general rule do not inquire into the adequacy of the consideration except where the inadequacy of the consideration leads to gross injustice to one party. The family arrangement has evidentiary value even if it is not registered. It is binding on persons who are parties to it and who have taken any advantage under such family arrangement. A family arrangement being binding on the parties to the arrangement clearly operates as an estoppel to preclude any of the parties who have taken advantage under the agreement from revoking or challenging as observed in Kale V Dy. Director of Consolidation, AIR 1976 SC 807. It was further observed that even a family arrangement, which was registrable but not registered can be used for a collateral purpose namely for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement. In Sita Ram Bhama V Ramvatar Bhama, SLP(C) NO 11067 OF 2017 decided on 23 March, 2018 it was observed that the family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family. The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence.
25. It is proved that the plaintiff first executed Relinquishment Deed Ex.PW1/DX1 and other documents Ex. PW1/DX2 to PW1/DX4 along with the defendant no1 and the defendant no 3 on 05.03.1998 in favour of the defendant no2 and thereafter also took Rs. 4 lacs on 30.11.2007 on execution of Indemnity Bond Ex.PW1/DX5 and Receipt Ex.PW1/DX6 out of his own free will, voluntarily and without any force, fear and coercion from the defendant no3 as price of his share which the plaintiff already relinquished in favour of the defendant no 2. Issue no 4 is decided in favour of the defendants and against the plaintiff.
ISSUE NO 5 Whether the plaintiff is entitled for decree for CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 21/27 partition in respect of the suit property by metes and bounds, if so, what is the extent of share of the plaintiff in the same? OPP
26. The law offers a partition action which can be initiated to divide the joint property into individual shares among the owners so that individual co-owner can move forward with his share independently. The partition of property can be arranged on a voluntary basis if all owners agree to it. If the owners don't agree, an order passed on judicial principles can partition the property based on one owner's request. The Supreme Court in Neelavathi V N. Natarajan, (1980) 2 SCC 247, Jagannath Amin V Seetharama, (2007) 1 SCC 694 and Md. Mohammad Ali V Jagdish Kalita, (2004) 1 SCC 721 held that in case of co-owners, possession of one is in law is possession of all unless ouster or exclusion is proved. It is not necessary that plaintiff should be in actual possession of whole or part of property or the plaintiff should be getting a share or some income from the property. So long as the right to a share and the nature of the property as joint is not disputed, the law presumes that he is in joint possession unless he is excluded from such possession. Mere long and continuous possession by itself is not enough plea of ouster and adverse possession has to be raised in the written statement. This position of law was followed by Delhi High Court in Saroj Salkan V Capt. Sanjeev Singh, (2008) 155 DLT 300 (DB) and M.K. Govil V Harish Chand Govil & Ors, CS(OS)388/2016 decided on 09th February, 2017.
27. The plaintiff is claiming partition of the suit property which was owned by the deceased who died on 12.12.1992 intestate which is disputed by the defendants. The plaintiff pleaded and deposed in affidavit Ex.PW1/A that the defendant no.2 in collusion with the defendant no.3 during the pendency of suit bearing no.89/13 created third party interest as the defendant no.2 executed Family GPA and Deed of Will/ family on 25.04.2013 in favour of defendant no.3 which was registered on 04.05.2013. Thereafter the defendant no.3 executed a Family General power of Attorney in favour of his wife i.e. the defendant no.4 which was registered on 06.06.2013. The defendants alleged and the defendant no 3 in affidavit Ex.DW1/A deposed that the defendant no.3 executed a Family General Power of Attorney in favour of the defendant no 4 in respect of the suit property on 23.04.2013. The plaintiff and the defendant no 3 did not cross examine each other of subsequent CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 22/27 transfer of suit property by the defendant no 2 in favour of the defendant no 3 and thereafter by the defendant no 4 in favour of the defendant no 4. The defendants proved that the plaintiff first executed Relinquishment Deed Ex.PW1/DX1 and other documents Ex. PW1/DX2 to PW1/DX4 along with the defendant no1 and the defendant no 3 on 05.03.1998 in favour of the defendant no2 and thereafter also accepted Rs. 4 lacs on 30.11.2007 on execution of Indemnity Bond Ex.PW1/DX5 and Receipt Ex.PW1/DX6 from the defendant no3 as price of his share which the plaintiff has already relinquished in favour of the defendant no 2. The defendant no 2 vide Family General Power of Attorney Ex.DW1/5 and Deed of Will/Family Ex.DW1/6 dated 25.04.2013 transferred suit property in favour of the defendant no 3 and thereafter the defendant no3 vide registered Family General Power of Attorney dated 30.04.2013 Ex.DW1/7 transferred the suit property in favour of the defendant no 4. The plaintiff does not have any right, title or interest in respect of suit property. The suit property is not liable for partition. The plaintiff could not prove that he is entitled for share in the suit property. Issue no 5 is decided in favour of the defendants and against the plaintiff.
ISSUE NO 6 Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP
28. Section 34 of Specific Relief Act, 1963 deals with relief of declaration. It reads as under:-:
Section 34.-- 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.
Section 34 provides that a suit against any person denying or interested to deny the plaintiffs' title to the legal character or right to any property can be filed. To obtain the relief of declaration the plaintiff must establish that (1) CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 23/27 the plaintiff was at the time of the suit entitled to any legal character or any right to any property (ii) the defendant had denied or was interested in denying the character or the title of the plaintiff, (iii) the declaration asked for was a declaration that the plaintiff was entitled to a legal character or to a right to property (iv) the plaintiff was not in a position to claim a further relief than a bare declaration of his title. It is a discretionary relief.
29. The plaintiff is claiming partition of the suit property being one of the legal heirs of the deceased who was owner of the suit property and died intestate. The plaintiff prayed that Relinquishment Deed Ex.PW1/DX1, General Power of attorney Ex.PW1/DX, Agreement to Gift Ex.PW1/DX3 and Affidavit for No Objection Ex.PW1/DX4 alleged to have been executed by the plaintiff, the defendant no.1 and the defendant no 3 favour of defendant no.2; be declared as null, void and not binding on the plaintiff. The plaintiff further prayed that Khatipurti Patra (Indemnity Bond) Ex.PW1/DX5 and Receipt dated 30.11.2017 of Rs.4,00,000/- Ex. PW1/DX6 alleged to have been executed by the plaintiff be declared as null and void, forged, fabricated and not binding on the plaintiff. The plaintiff further prayed that General Power of Attorney Ex.DW1/5 dated 25.04.2013 executed by the defendant no.2 in favour of the defendant no.3 and the General Power of Attorney Ex.DW1/7 executed by the defendant no.3 in favour of the defendant no.4 be declared as null , void and are not binding on the plaintiff. In view of discussion and judicial findings on issue no 4 and 5 it is proved that the plaintiff along with the defendant no 1 and the defendant no 3 executed Relinquishment Deed Ex.PW1/DX1, General Power of attorney Ex.PW1/DX, Agreement to Gift Ex.PW1/DX3 and Affidavit for No Objection Ex.PW1/DX4; and Khatipurti Patra (Indemnity Bond) Ex.PW1/DX5 and Receipt dated 30.11.2017 of Rs.4,00,000/- Ex. PW1/DX6. The defendant no 2 executed The defendant no 2 Family General Power of Attorney Ex.DW1/5 and Deed of Will/Family Ex.DW1/6 dated 25.04.2013 in favour of the defendant no 3 and thereafter the defendant no3 executed registered Family General Power of Attorney dated 30.04.2013 Ex.DW1/7 in favour of the defendant no 4. The plaintiff could not prove that these documents were not executed legally or outcome of fraud, misrepresentation or any other similar ground. The plaintiff is not entitled for relief as prayed for. Issue no 6 is decided in favour of the CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 24/27 defendants and against the plaintiff.
ISSUE NO 7 Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for? OPP
30. Section 37(2) of the Specific Relief Act, 1963 lays down that a permanent injunction can only be granted by a decree at the hearing and upon the merits of the case. In simple words, for obtaining a permanent injunction, a regular suit is to be filed in which the right claimed is examined upon merits and finally, the injunction is granted by means of judgment. A permanent injunction therefore finally decides the rights of a person whereas a temporary injunction does not do so. A permanent injunction completely forbids the defendant to assert a right which would be contrary to the rights of the plaintiff specifies certain circumstances under which permanent injunction may be granted. Section 38 reads as under:-
38. Perpetual injunction when granted.--
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:
--
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
In Balkrishna Dattatraya Galande V Balkrishna Rambharose Gupta, 1509 OF 2019 decided on 06th February, 2019 the Supreme Court observed and held that for seeking relief under Section 38 of the Specific Relief Act, the Plaintiff filing such a suit has to prove that he is in actual CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 25/27 possession as on the date of the suit for seeking permanent injunction. The possession of the plaintiff cannot be based upon the inferences; drawn from circumstances. The plaintiff has to prove actual possession for grant of permanent injunction. It was observed that:-
The party seeking injunction based on the averment that he is in possession of the property and seeking assistance of the Court while praying for permanent injunction restraining other party who is alleged to be disturbing the possession of the plaintiff, must show his lawful possession of the property.
As discussed earlier, in a suit filed under Section 38 of the Specific Relief Act, possession on the date of suit is a must for grant of permanent injunction. When the first respondent-plaintiff has failed to prove that he was in actual possession of the property on the date of the suit, he is not entitled for the decree for permanent injunction.
31. The plaintiff pleaded and deposed in affidavit Ex.PW1/A that the plaintiff filed a suit bearing no 89/13 titled as Rajesh Kumar V Munni Devi and at the time of filing of said suit was residing in suit property. The defendant no 2 started to harass and quarrel with the children of plaintiff and due to this the plaintiff left the room under his possession in suit property after locking his goods in room which was under his possession. The plaintiff also filed a complaint in Police Station New Usmanpur on 23.01.2013. The plaintiff also lodged a complaint with the police station on 31.03.2013 as the defendant no 2 and 3 broke open the lock of the room of the plaintiff and removed the goods of the plaintiff from said room. The plaintiff prayed for passing of decree of permanent injunction for restraining the defendants from selling alienating and parting with possession of the suit property. The plaintiff in cross examination admitted that he is not residing in suit property since 2007. The suit property is already transferred in favour of the defendant no 4 vide Ex.DW1/7. The plaintiff does not have any right, title or interest in suit property. The plaintiff is not entitled for injunction as prayed for. Issue no 7 is decided in favour of the defendants and against the plaintiff.
ISSUE NO 8 Relief
32. The entire journey of the judicial process is to find the truth from the CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 26/27 pleadings, documents and evidence of the parties. Truth is the basis of the justice. The Supreme Court in A.S. Narayana Deekshitulu V State of A.P., (1996) 9 SCC 548 observed that from the ancient times, the constitutional system depends on the foundation of truth. In Zahira Habibullah Sheikh V State of Gujarat, (2006) 3 SCC 374 it was observed that right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The Supreme Court in Dalip Singh V State of UP, (2010)2SCC114 observed that truth constituted an integral part of the justice delivery system. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012)5SCC370, it was observed that the truth should be guiding star in the entire judicial process. Truth alone has to be the foundation of justice. This view was reiterated in A. Shanmugam V Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam. In view of above discussions and findings on issue no 4 to 7 the suit of the plaintiff is dismissed. The parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
ANNOUNCED IN THE COURT ON 30.05.2020 (DR. SUDHIR KUMAR JAIN) DISTRICT AND SESSIONS JUDGE, NORTH EAST KARKARDOOMA COURTS, DELHI CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 27/27 CS 105/2016 RAJESH KUMAR JAIN V MUNNI DEVI & OTHERS 28/27