Delhi District Court
Sh. Surender Kumar vs Smt. Rita Vashisht on 13 December, 2019
IN THE COURT OF ADDITIONAL DISTRICT JUDGE05,
SOUTH WEST, DWARKA COURTS, NEW DELHI
Civil Suit No: 16168/16
IN THE MATTER OF :
Sh. Surender Kumar
S/o Late Sh. Om Prakash,
R/o 250, Village & PO Kakrola,
New Delhi.
.......... Plaintiff
versus
1. Smt. Rita Vashisht
W/o late Sh. Ashok Kumar Vashisht,
R/o Flat No. 103, Kanal Durga Apartments,
Sector - 12, Dwarka, New Delhi - 110075.
2. Sh. Vishal
S/o Late Sh. Vishwa Nath,
R/o 199, Kakrola Housing Complex,
Khasra No. 21/5, Opposite Patel Garden,
New Delhi - 110078.
.......... Defendants
SUIT FOR DECLARATION AND POSSESSION WITH
CONSEQUENTIAL RELIEF OF PERMANENT INJUNCTION
Date of institution : 18.12.2014
Date when judgment reserved : 28.11.2019
Date of Judgment : 13.12.2019
CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 1 of 50
JUDGMENT:
1. Vide this judgment, I shall decide the present suit filed by the plaintiff against the defendants for declaration and possession with consequential relief of permanent injunction.
2. The case of the plaintiff as set out in the plaint is summarized as under: 2.1. The property bearing No. 199, measuring 120 sq. yards comprising in Khasra No. 21/2, situated within the revenue estate of colony known as Kakrola Housing Scheme Complex, Opposite Patel Garden, New Delhi - 110078 (hereinafter referred to as "suit property") was owned and possessed by the Gram Panchayat, Village Kakrola, Delhi. The Gram Panchayat allotted the said property under the scheme of Twenty Point Programme to the plaintiff vide Certificate of Allotment dated 24.03.1985 for a period of 15 years on a leasehold basis with certain terms and conditions.
2.2. The Gram Panchayat, Village Kakrola, Delhi handed over the physical possession of the property in question to the plaintiff in CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 2 of 50 terms of the possession letter dated 24.03.1985 against which the plaintiff has paid a sum of Rs. 90/ as lease rental. After getting the possession of the property in question, the plaintiff had constructed a house over the suit plot out of his own funds only.
2.3. Initially the property in question was allotted to the plaintiff for a period of 15 years only on leasehold basis, thereafter on 28.02.2008, the plaintiff applied for grant of perpetual lease rights in respect of property in question vide application dated 28.02.2008, however the tenure of lease was never enhanced by the Gram Panchayat Village Kakrola but the possession over the suit property was held by the plaintiff as the lessee as the property was allotted in the name of the plaintiff only who had constructed house over the property. 2.4. The plaintiff raised construction over the property in question and also got installed an electricity connection in his name from BSES Rajdhani Power Ltd. vide CA No. 103380738 and CRN No. 2661159849 dated 10.06.2008.
2.5. As per the terms and conditions of the Certificate dated 24.03.1985, the property in question was to be used for the residential CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 3 of 50 purposes only and the same was not transferable in any manner. In case of contravention of the terms and conditions stipulated in the certificate, the Gram Panchayat, Village Kakrola, Delhi will have right to take back the property from the allottee.
2.6. As the plaintiff was having an ancestral house for the residence in village Kakrola, the brother of the plaintiff late Sh. Ashok Kumar made a request to reside in the property in question for some time as the adjoining plot no. 200 which was allotted to him by Gram Panchayat was not constructed and he assured to vacate the suit property as soon as he will construct the house over the plot no. 200. The plaintiff believing upon the assurance of his brother permitted him to reside in the suit property. On 20.06.2005, the brother of the plaintiff and husband of defendant no. 1 shifted to Dwarka in a society flat and assured to hand over the possession of the suit property very shortly. 2.7. Upon the demise of Sh. Ashok Kumar, his wife Rita Vashisht (defendant no. 1) approached the plaintiff and asked him to transfer the property in question in her name as per the agreement dated 10.11.1993 which has never been executed by the plaintiff and the same CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 4 of 50 has been illegally and fraudulently prepared by defendant no. 1 in order to grab the property.
2.8. In the month of November 2011, the plaintiff asked defendant no 1 to hand over the possession of the property in question but she flatly refused to do the same and asked the plaintiff to transfer the property by executing sale deed in her favour on the basis of forged agreement dated 10.11.1993.
2.9. The plaintiff came to know that the defendant no. 1 has inducted a tenant in the suit property. In December 2011, the plaintiff visited the said tenant and asked him to hand over the possession of the suit property. The defendant no. 2 agreed to hand over the possession of the property in January 2012 but till date has not vacated the same for which the plaintiff has also filed a complaint against defendant no. 1 and 2 with SHO Dwarka New Delhi on 03.04.2012. It is stated that both the defendants compelled the plaintiff to file the present suit.
3. The plaintiff by way of present suit has prayed for following reliefs:
a) a decree of declaration thereby declaring the agreement dated 10.11.1993 as null and void being forged and CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 5 of 50 fabricated and to declare the plaintiff as owner of the leasehold rights of the property in question;
b) a decree of possession thereby directing the defendants to hand over the physical possession of the property in question to the plaintiff and to deposit the rent as per rent agreement before the Court during the pendency of the suit;
c) a decree of permanent injunction thereby restraining the defendant no. 1 from creating any third party interest in the suit property;
4. The defendant no.1 has contested the suit by filing the written statement contending that: 4.1. The plaintiff has approached the Court with unclean hands.
It is stated that the plaintiff himself voluntarily and lawfully parted with the subject property in favour of his deceased brother, namely, Sh. Ashok Kumar on 10.11.1993 and from whom his widow (defendant no. 1) eventually claims title.
4.2. The suit has not been correctly valued by the plaintiff for the purposes of court fees and jurisdiction as the reliefs claimed in the suit are not separately valued in terms of Suit Valuation Act. CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 6 of 50 4.3. After the demise of Sh. Ashok Kumar (deceased husband of defendant no. 1), the property held by him in his absolute ownership i.e. Plot No. 199, Kakrola Housing Complex devolved according to the law of succession to his Class I legal heir and he is survived by his widow (the defendant no. 1) and two children Priyanka Vashisht (daughter) and Akshay Vashisht (Son) and the suit of the plaintiff is bad for nonjoinder of necessary parties as the children of deceased Sh. Ashok Kumar have a definite share in the suit property and they have not been impleaded as party in the present suit. 4.4. The suit property was originally allotted to the plaintiff by Gram Panchayat under a Twenty Point Programme in the year 1985 and the adjoining property bearing No. 200 measuring 120 sq. yards comprised in Khasra No. 21/2 in Village Kakrola Abadi Gram Sabha was allotted to Sh. Ashok Kumar (deceased husband of defendant no. 1 and brother of plaintiff) on the same terms and conditions. Sometime in the month of October/ November 1993, the plaintiff and late Sh. Ashok Kumar mutually and voluntarily entered into an oral family arrangement, in pursuance of which the aforesaid two plots were exchanged inter se CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 7 of 50 by two brothers. The terms of the said family arrangement was reduced in writing and a memorandum was prepared in the form of Ikrarnama dated 10.11.1993 so as to avoid any future dispute. The said Ikrarnama dated 10.11.1993 was voluntarily acted upon by the plaintiff and husband of defendant no. 1 and pursuant thereof, the plaintiff came in control and possession of property bearing No. 200, Village Kakrola, Delhi and the deceased husband of the defendant no. 1 came in control and possession of suit property bearing No. 199, Village Kakrola, Delhi. The husband of the defendant no. 1 after taking possession of the suit property raised building thereupon in the year 1994 consisting of ground floor and part first floor out of his own funds and similarly the plaintiff after coming into possession of the property bearing No. 200, Village Kakrola raised boundary wall and one room thereupon. Since the conclusion of construction in 1994 till the year 2005, the defendant no. 1 alongwith her husband and children had been residing in the suit property and in the year 2005 she alongwith her family moved to a more prosperous neighbourhood and inducted a tenant in the suit property who is defendant no. 2 in the present case.
CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 8 of 50 4.5. The plaintiff is legally estopped from denying the contents and doubting the veracity of Ikrarnama which he had himself executed on 10.11.1993 voluntarily, willingly and out of his own free will. Even otherwise the plaintiff would have been well within his right to challenge the said Ikrarnama within a period of three years from its execution i.e. not later than 10.11.1996 and hence the present suit is barred by law of limitation.
4.6. The defendant no. 2 is neither a necessary nor a proper party in the present suit as he is only a tenant under defendant no. 1 and has no independent right in the suit property and hence the suit is also bad for misjoinder of parties.
4.7. After the death of Sh. Ashok Kumar in 2001, the defendant no. 1 and her two children have become absolute coowners of the suit property and are in possession of the suit property in the said capacity. The plaintiff during the lifetime of deceased Sh. Ashok Kumar has never made any single complaint against him and now after the death of Sh. Ashok Kumar, the plaintiff has turned dishonest and intends to have title, control and possession of both the properties i.e. the suit property CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 9 of 50 bearing No. 199, Village Kakrola and the adjoining property bearing No. 200, Village Kakrola which is presently in occupation of the plaintiff.
4.8. On merits, the contents of the plaint are stated to be wrong and denied and the defendant no. 1 has prayed for dismissal of the suit.
5. The plaintiff has filed replication to the written statement in which the averments made in the plaint have been reiterated and reaffirmed and those made in the written statement have been controverted.
6. The defendant no. 2 did not file written statement separately and opted to adopt the written statement filed by the defendant no. 1.
7. From the pleadings of the parties, following issues have been framed by the Ld. Predecessor vide order dated 13.07.2016 for adjudication :
1. Whether the agreement dated 10.11.1993 executed between the plaintiff and the husband of defendant no. 1 is liable to be declared null and void as prayed by the plaintiff? OPP.
2. Whether the plaintiff is entitled to a decree of possession in respect of plot No. 199 admeasuring 120 sq. yards CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 10 of 50 falling in Khasra No. 21/2, situated in Revenue Estate of Village Kakrola, now known as Kakrola Housing Scheme Complex, New Delhi, as prayed for? OPP.
3. If Issue No. 1 and 2 are decided in favour of plaintiff, whether the defendant no. 1 is entitled to the ownership and possession of plot No. 200 in the aforesaid colony? OP Parties.
4. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP.
5. Relief
8. In order to prove his case, the plaintiff has examined two witnesses including himself as PW1. He filed his evidence by way of affidavit which is Ex.PW1/A wherein he reiterated the averments made in the plaint. During his deposition before the Court as PW1, the plaintiff relied upon and exhibited the following documents: Ex. PW1/1 : Certificate issued by Gram Panchayat, Kakrola in his favour in respect of suit property Ex. PW1/2 : Original Electricity Bill in his name of the suit property dated 28.03.2012 Ex. PW1/3 : Original Possession Letter issued by Gram Sabha, Kakrola, Delhi Ex. PW1/4 : Original LR form CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 11 of 50
9. The other witness examined by the plaintiff as PW2 is Sh. Dharambir who filed his evidence by way of affidavit Ex.PW2/A wherein he has deposed on the similar lines as deposed by PW1 (the plaintiff) in his examinationinchief.
10. The defendant no.1, in support of averments made in the written statement, has examined herself as DW1 and her brother Sh. Virender Gaur as DW2. Both the witnesses filed their evidence by way of affidavits which are Ex.DW1/A and Ex.DW2/A respectively in consonance of averments made in the written statement. During her deposition as DW1, the defendant no. 1 has relied upon and exhibited the following documents: Ex.DW1/1 : Copy of allotment certificate issued by Gram Panchayat in the name of her deceased husband Ex.DW1/2 : Copies of electricity bills in the name (Colly) of her deceased husband Ex.DW1/3 : Copies of MTNL bills in the name of (Colly) her deceased husband Ex.DW1/4 : Copy of acknowledgment slip issued by MTNL for registration of new telephone connection Ex.DW1/5 : Copy of receipt issued by Delhi Jal CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 12 of 50 Board in the name of her husband Ex.DW1/6 : Copy of water bills issued by Delhi Jal (Colly) Board in the name of her husband
11. I have heard the Ld. Counsel for the parties and perused the record carefully. I have also gone through the written arguments filed on behalf of defendant no. 1.
12. On the basis of material available on record, my issuewise findings are as under: Issue No. (1) (Whether the agreement dated 10.11.1993 executed between the plaintiff and the husband of defendant no. 1 is liable to be declared null and void as prayed by the plaintiff?)
13. The onus to prove this issue is on the plaintiff. Admittedly, the plaintiff and late Sh. Ashok Kumar (husband of defendant no. 1) were real brothers. From the pleadings of the parties, it is also not in dispute that suit plot No. 199 situated within the revenue estate of colony known as Kakrola Housing Scheme Complex, Opposite Patel Nagar, New Delhi was allotted to the plaintiff by Gram Panchayat, Village Kakrola, New Delhi on 24.03.1985 vide certificate of allotment CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 13 of 50 Ex.PW1/1 and possession thereof was also taken by the plaintiff vide possession letter dated 24.03.1985 Ex.PW1/3. It is also an admitted fact that adjacent plot bearing No. 200 in the aforesaid colony was allotted to late Sh. Ashok Kumar (brother of the plaintiff and husband of defendant no. 1) vide certificate of allotment Ex.DW1/1 and the possession thereof was also taken by him on 21.03.1985.
14. Now, the case of the plaintiff is that as he was residing in his ancestral house in Village Kakrola, Delhi, his brother late Sh. Ashok Kumar (husband of defendant no. 1) requested to allow him to reside in the suit property i.e. plot No. 199 for sometime as adjoining plot bearing No. 200 alloted to him by Gram Panchayat was not constructed at that time and assured to vacate the same as soon as his plot is constructed. Believing upon the assurance of his brother, the plaintiff allowed his brother late Sh. Ashok Kumar to reside in the suit property only as a permissive user. It is further case of the plaintiff that in the year 2005, his brother late Sh. Ashok Kumar vacated the suit property and shifted to his own house at Dwarka, New Delhi without handing over the possession of the suit property to him and after the death of his brother, CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 14 of 50 the defendant no. 1, who is widow of his brother is claiming her ownership over the suit property on the basis of an agreement dated 10.11.1993 which is a forged and fabricated document.
15. While the defendant no. 1 has contended that after allotment of plot no. 199 i.e. the suit plot to the plaintiff and plot no. 200 to her husband late Sh. Ashok Kumar, in a family arrangement both the brothers had agreed to exchange their plots inter se allotted to them by the Gram Panchayat, Village Kakrola, Delhi and thus plot no. 199 i.e. the suit plot came into ownership and possession of her late husband Sh. Ashok Kumar and plot no. 200 came into ownership and possession of the plaintiff and consequently a family memorandum being Ikrarnama dated 10.11.1993 was prepared by them in this regard. The defendant no. 1 has also pleaded that pursuant to the said family arrangement, her husband late Sh. Ashok Kumar got constructed the suit property out of his own funds and after the death of her husband, suit property devolved upon her and her children by law of succession.
16. The defendant no. 1 has heavily relied upon the Ikrarnama dated 10.11.1993 allegedly executed between the plaintiff and late CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 15 of 50 Sh. Ashok Kumar (husband of defendant no. 1) which is Ex.PW1/D1. The plaintiff has claimed the said Ikrarnama Ex.PW1/D1 to be forged and fabricated and contended that no such agreement was ever executed between him and his brother late Sh. Ashok Kumar and there was no exchange of plots between them as alleged by the defendant no. 1.
17. During course of the arguments, Ld. Counsel for the plaintiff has vehemently argued that the Ikrarnama Ex.PW1/D1 relied upon by the defendant no. 1 is inadmissible in evidence being an unregistered document and cannot be looked into for any purpose and the same is barred u/s 118 of Transfer of Property Act 1882. He has placed reliance in this regard in Shyam Narayan Prasad vs. Krishna Prasad & Ors. AIR 2018 SC 3152. He further argued that Ikrarnama Ex.PW1/D1 is not only inadmissible in evidence but is also forged and fabricated document as the same was never executed by the plaintiff and his signature thereupon has been forged by the defendant no. 1 in order to grab the suit property owned by the plaintiff.
18. Per contra, Ld. Counsel for the defendant no. 1 has vehemently submitted that the Ikrarnama Ex.PW1/D1 was executed on CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 16 of 50 10.11.1993 on a stamp paper which was duly signed, witnessed and notarized and the said family arrangement was duly recognized and does not require any registration and is not barred u/s 118 of Transfer of Property Act 1882.
19. In view of aforesaid rival contentions of the parties and the submissions made by their counsels, the first point which emerges for consideration is: Whether the Ikrarnama Ex.PW1/D1 is inadmissible in evidence being an unregistered document and the same is hit by section 118 of Transfer of Property Act 1882 and the second point which has emerged for consideration is: Whether the said Ikrarnama Ex.PW1/D1 was never executed by the plaintiff and the same is a forged and fabricated document as claimed by the plaintiff or the same was duly executed between the plaintiff and late Sh. Ashok Kumar (husband of defendant no. 1) by which both the brothers had exchanged their immovable properties inter se as contended by the defendant no. 1.
20. First of all, I shall discuss the admissibility of Ikrarnama Ex.PW1/D1 in evidence on which heavy reliance has been placed upon by the defendant no. 1 to claim that plot no. 199 i.e. the suit plot came CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 17 of 50 into the ownership of her husband late Sh. Ashok Kumar after swapping of plots between the plaintiff and her husband.
21. Section 118 of Transfer of Property Act 1882 defines "exchange" and reads as under: When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".
A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.
22. In Shyam Narayan Prasad vs. Krishna Prasad (cited supra) relied upon by the Ld. Counsel for the plaintiff, the Hon'ble Supreme Court has observed that, "The mode of transfer in case of exchange is the same as in the case of sale. It is thus clear that in the case of exchange of property of value of Rs. 100/ and above, it can be made only by a registered instrument." The Hon'ble Supreme Court referring the Section 17 of the Registration Act has held that, "Since the deed of exchange has the effect of creating and taking away the rights in respect of an immovable property, it requires registration under Section 17 of the Registration Act and if the same is not registered, the same CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 18 of 50 cannot be taken into account to the extent of the transfer of an immovable property".
23. In the present case, the Ikrarnama Ex.PW1/D1 is, in fact, a deed of exchange by which the plaintiff and late Sh. Ashok Kumar (husband of defendant no. 1) have allegedly exchanged their immovable properties i.e. the plots of land allotted to them by the Gram Panchayat, Village Kakrola, Delhi. Perusal of the Ikrarnama Ex.PW1/D1 shows that the same is an unregistered document. So, being an unregistered document, the Ikrarnama Ex.PW1/D1 is inadmissible in evidence as held by the Hon'ble Supreme Court in Shyam Narayan Prasad vs. Krishna Prasad (supra) and cannot be relied upon.
24. Leaving aside the aforesaid legal objection, let us find out whether the Ikrarnama Ex.PW1/D1 was duly executed between the plaintiff and late Sh. Ashok Kumar (husband of defendant no. 1) or the same is a forged and fabricated document having not been executed by the plaintiff.
25. The plaintiff when appeared in the witness box as PW1 while reiterating the averments made in the plaint has deposed in his CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 19 of 50 examinationinchief that agreement dated 10.11.1993 was never executed by him and the same has been illegally prepared by defendant no. 1 to grab the property in question which is a built up structure.
26. During crossexamination, PW1 (the plaintiff) was suggested that there was a family arrangement in their family in October/November 1993 under which his plot No. 199 was given to his elder brother Sh. Ashok Kumar and his plot No. 200 was given to him which he denied. He was confronted with the original agreement marked as Ex.PW1/D1 and on seeing the same, he stated that no such agreement was executed in their family. He further stated that it does not bear his signatures at any point and the signatures appearing at point X on the same is not his signatures. However, he has identified the signatures of his brother Sh.Ashok Kumar at point Y. He stated that he cannot identify the other two signatures on the said agreement. He denied the suggestion that this agreement bears the signature of himself as well as of his father and he has wrongly denied the same. He further denied the suggestion that he had agreed for the exchange of plots as mentioned in the aforesaid agreement as he wanted to settle permanently in village CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 20 of 50 Kakrola.
27. From the aforesaid crossexamination of PW1 (the plaintiff), it is apparent that the plaintiff has denied that Memorandum/Ikrarnama Ex. PW1/D1 bears his signatures at point X and has also denied the execution of the said Ikrarnama on 10.11.1993. The testimony of the plaintiff that he never executed the Ikrarama Ex.PW1/D1 could not be impeached by the Ld. Counsel for the defendant no. 1.
28. It is pertinent to note here that in the written statement filed by defendant no. 1, the said Ikrarnama Ex.PW1/D1 is alleged to have been witnessed by Sh. Dharambir, who is real brother of the plaintiff and late Sh. Ashok Kumar (husband of defendant no. 1). The said alleged witness Sh. Dharambir has been examined by the plaintiff as PW2 and he has corroborated the testimony of the plaintiff that said Ikrarnama Ex.PW1/D1 is a forged and fabricated document and was never executed between the plaintiff and late Sh. Ashok Kumar (husband of defendant no. 1).
29. PW2 Sh. Dharambir deposed in his examinationinchief CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 21 of 50 on similar lines as deposed by PW1 (the plaintiff) in his examination inchief regarding allotment of plot No. 199 to the plaintiff and allotment of plot No. 200 to late Sh. Ashok Kumar by the Gram Panchayat, Village Kakrola, Delhi, raising of construction by the plaintiff over the suit plot, grant of permission to late Sh. Ashok Kumar by the plaintiff to reside in the suit property as a permissive user and denial of execution of the agreement dated 10.11.1993. He has also deposed that the agreement dated 10.11.1993 has been illegally and fraudulently prepared by the defendant no. 1 in order to grab the property in question with its built up structure and the same has neither been signed by him as witness nor by his father nor by the plaintiff. He further deposed that he did not sign the papers in English and always put his signature in Hindi language till 20102011.
30. In the crossexamination, DW2 stated that the construction material for raising construction on plot No. 199 was arranged by his brother Surender Kumar. He does not know from where he had purchased the construction material as he never used to accompany him. He admitted that the construction material may not have been purchased CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 22 of 50 by Surender Kumar himself. He admitted that his brother Ashok Kumar had started residing in plot No. 199 in the year 1993. He stated that he did not know whether there had been any exchange of plots between the families and plot No. 199 was given to Ashok Kumar. He denied the suggestion that the terms of family arrangement were reduced in writing in the form of agreement Ex.PW1/D1. He stated that the signatures appearing at point Z on the said agreement is not his signatures and the signatures appearing at point W on the said agreement is not that of his father. He further stated that the signatures appearing at point X on the aforesaid agreement is not that of his brother Surender (plaintiff herein).
31. Therefore, the alleged witness to Ikrarnama Ex.PW1/D1, namely, Sh. Dharambir has denied the execution of the same and his signatures on the said Ikrarnama at point Z. Nothing material could be extracted from the crossexamination of PW2 Sh. Dharambir regarding execution of Ikrarnama Ex.PW1/D1. Rather he has fully supported the case of the plaintiff that the said Ikrarnama Ex.PW1/D1 was never executed between the plaintiff and late Sh. Ashok Kumar (husband of defendant no. 1) nor he had signed the same as a witness to the same. CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 23 of 50
32. On the other hand, the defendant no. 1 in order to prove her case regarding exchange of plots between the plaintiff and her husband late Sh. Ashok Kumar and execution of Ikrarnama Ex.PW1/D1 has examined herself as DW1 and reiterated the averments made in this regard in her written statement in her examinationinchief. In her cross examination, DW1 (the defendant no. 1) stated that she got married to Sh.Ashok Kumar Vashisht in the year 1989. After the marriage, she started residing with him in village Kakrola. She further stated that they were residing there in joint family. The plaintiff and his family were also staying with them in the same house. She further stated that Sh. Dharambir, third brother of her husband and the plaintiff was also residing in the same house. She further stated that they shifted from the said house on 07.11.1995 to their own house in Kakrola Housing Complex. She denied the suggestion that no agreement/Ikrarnama was executed between the plaintiff and her husband. She further denied the suggestion that the plaintiff and her fatherinlaw have not signed the said Ikrarnama Ex.PW1/D1. She stated that the terms of the agreement were first reduced to writing by hand in the joint house at Kakrola in CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 24 of 50 presence of all the parties. She stated that she does not know who got the same typed later on. She further stated that her family, plaintiff's family, her parentsinlaw and other members of their joint family were present at the time of preparation of this agreement.
33. From the aforesaid crossexamination of DW1 (the defendant no. 1), it has come out that the said agreement/ Ikrarnama Ex.PW1/D1 was prepared when she was living in joint family and at the time of preparation of the same, apart from her and her husband, plaintiff and his family, her parentsinlaw and other members of their joint family were also present. But the defendant no. 1 has not examined any other family members of joint family to prove the execution of agreement/ Ikrarnama Ex.PW1/D1 between the plaintiff and her husband late Sh. Ashok Kumar. It was more important when the alleged witness to the said agreement/ Ikrarnama Ex.PW1/D1, namely, PW2 Sh. Dharambir who is the third brother of the plaintiff and late Sh. Ashok Kumar has categorically denied his signature thereon at point Z and also denied the execution of any such agreement between the plaintiff and late Sh. Ashok Kumar. Since the defendant no. 1 has not CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 25 of 50 examined any other family member who were allegedly present at the time of execution of Ikrarnama Ex.PW1/D1 to prove her contention that by virtue of agreement/ Ikrarnama Ex.PW1/D1, the plots were swapped by the plaintiff and her husband late Sh. Ashok Kumar, therefore an adverse inference is liable to be drawn against the defendant no. 1.
34. Though the defendant no. 1 has examined her brother Sh. Virender Gaur as DW2 who deposed in his examinationinchief by way of affidavit that sometime in the year 1993/ early part of year 1994, his brotherinlaw Sh. Ashok Kumar and her sister (defendant no. 1) had apprised him that upon the decision made by the family of two brothers, plot no. 199 which was allotted to plaintiff was exchanged with the plot allotted to his brotherinlaw being plot no. 200 and upon said exchange, his brotherinlaw became the owner in possession of plot no. 199, whereas the plaintiff became the owner in possession of plot no. 200.
35. Admittedly the said witness DW2 Sh. Virender Gaur is not a witness to the said agreement/Ikrarnama Ex.PW1/D1 nor the same was executed in his presence. He only heard about the execution of the same from his sister and brotherinlaw late Sh. Ashok Kumar. Therefore, CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 26 of 50 from the testimony of a hearsay witness, the execution of Ikrarnama Ex.PW1/D1 between the plaintiff and late Sh. Ashok Kumar cannot be said to have been proved on record.
36. It is also relevant to note here that the defendant no. 1 during course of the proceedings has moved an application u/s 45 of Indian Evidence Act on 10.02.2017 for examining the handwriting expert to take an opinion in respect of signatures appearing on Ikrarnama Ex.PW1/D1, but later on the said application was not pressed upon by the defendant no. 1 and, therefore, again an adverse inference is liable to be drawn against the defendant no. 1.
37. There is another aspect of the matter. The plaintiff has claimed that after allotment of the plot no. 199 to him, he got the suit property constructed in the year 1994 out of his own funds while the defendant no. 1 has claimed that her husband late Sh. Ashok Kumar had got the suit property constructed out of his own funds and resources after he came into ownership and possession of plot No. 199 upon swapping of plots between the plaintiff and her husband. The defendant no. 1 has also claimed that since the plaintiff came into ownership of plot no. 200, CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 27 of 50 he constructed one room over the said plot.
38. The plaintiff as PW1 has reiterated in his examinationinchief that after allotment of the plot in question, he constructed a house over the same out of his own funds. In the crossexamination, PW1 (the plaintiff) was suggested by the Ld.Counsel for the defendant no. 1 that Sh. Ashok Kumar had raised construction over the suit plot No. 199 in the year 1994 which suggestion was denied by the plaintiff. He was further suggested that he had raised construction of one room on plot No. 200 in the year 2008 which he again denied. He categorically stated that he had no reason or occasion for raising any construction on plot No. 200 as it does not belong to him. He further categorically stated that the construction on plot No. 199 was raised by him in the year 1994.Though he could not recollect as to from whom he had purchased the construction material. He was suggested that he is not recollecting these things for the reason that he had not purchased any such material in the year 1994 which he denied. He also denied the suggestion that he was not financially capable to purchase the construction material in the year 1994.
CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 28 of 50
39. Admittedly, the plot in question i.e. plot bearing No. 199 was allotted to the plaintiff by the Gram Panchayat, Village Kakrola, Delhi and still exists in the name of the plaintiff. Therefore, his claim of construction of the suit property over the plot allotted to him cannot be brushed aside only because of the reason that he could not recollect the name of the vendor from whom he had purchased the construction material. The crossexamination of the plaintiff was conducted on 17.12.2016 and the suit property was constructed in the year 1994 and it was a long gap of 22 years and with the fading human memory, if the plaintiff was not recollecting the name of the vendor, the claim of the plaintiff of raising construction in the year 1994 cannot be doubted.
40. Similarly, PW2 (Sh. Dharambir) has categorically deposed in his evidence that the plaintiff raised construction over the property in question and also got installed an electricity connection in his name from BSES Rajdhani Power Ltd. In his crossexamination, PW2 stated that he was around 20 years of age in the year 1994. He further categorically stated that the construction material for raising construction on plot No. 199 was arranged by his brother Surender Kumar. He does not know CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 29 of 50 from where he had purchased the construction material as he never used to accompany him. He admitted that the construction material may not have been purchased by Surender Kumar himself. He denied the suggestion that the construction of plot No. 199 was raised by Ashok Kumar.
41. The aforesaid crossexamination of PW2 (Sh. Dharambir) would again show that the Ld. Counsel for defendant no.1 has not been able to extract anything to impeach the version of PW2 that construction of plot no. 199 was got done by the plaintiff.
42. On the other hand, the defendant no. 1 has not led any substantive evidence to prove her claim of construction being carried out by her husband out of his own funds in the year 1994. She deposed in her examinationinchief that upon exchanging the plots, in the year 1994 her husband raised construction on his plot no. 199 out of his own funds and resources. She also deposed that for construction of the plot, her brother namely, Sh. Virender Gaur who is Military Engineer Contractor helped her husband financially in procuring construction material from his sources on concessional rates. She further deposed that CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 30 of 50 her brother had procured bricks and chokhats and other material on concession rates.
43. It is pertinent to note that during crossexamination of PW1 (the plaintiff), Ld. Counsel for defendant no. 1 has given a suggestion that the brother of defendant no. 1 had supplied the construction material to her husband in the year 1994 for raising construction on plot No. 199, which was denied by the plaintiff.
44. The aforesaid deposition of defendant no. 1 shows that it is her brother Sh. Virender Gaur who is Military Engineer Contractor and whom she has examined as DW2 helped her husband in procuring construction material like bricks, chokhats and other material from his sources on concessional rates, however her reliance on the testimony of DW2 Sh. Virender Gaur is of no consequence.
45. Though DW2 has deposed in his examinationinchief that he is a registered Military Engineer Contractor since 1979 and carry out construction work in relation to Military/Army projects. Being in construction filed, he had helped his brotherinlaw Sh. Ashok Kumar in procuring bricks, sand, cement, chokhats, wood for raising construction CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 31 of 50 on his plot no. 199 on concessional rates. He has further deposed that since his brotherinlaw Sh. Ashok Kumar was facing financial difficulties at the relevant time, he had also assisted him financially for raising construction on plot no. 199. However, DW2 (Sh. Virender Gaur) has not disclosed from whom he had arranged the said building construction material i.e. bricks, cement, chokhats wood etc. which was used in the construction of the suit property. Nor he has placed on record any bills regarding purchase of the construction material. Only self serving statement would not discharge the burden to prove the construction being carried out by late Sh. Ashok Kumar (husband of defendant no. 1). Moreover, DW2 (Sh. Virender Gaur) is an interested witness as he is real brother of defendant no. 1. Therefore, being an interested witness, his testimony is not of much importance.
46. The defendant no. 1 has also taken a plea that her husband late Sh. Ashok Kumar was paying all the charges be it electricity, water and other charges in respect of the plot no. 199 being owner thereof. In this regard, she has relied upon the electricity bills Ex.DW1/2 (Colly), MTNL bills Ex.DW1/3 (Colly) and water bills Ex. DW1/6 (Colly) CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 32 of 50 issued in the name of her husband late Sh. Ashok Kumar since 2000 onwards. Perusal of the same shows that all these bills in the name of late Sh. Ashok Kumar are in respect of plot no. 200 and not in respect of plot No. 199. Therefore, assertion of defendant no. 1 regarding payment of these bills by her husband in respect of plot no. 199 is falsified. The plaintiff, on the other hand, has placed on record the electricity bill in his name which is Ex. PW1/2 and the same shows that the electricity meter is installed in plot No. 199 in his name. There is not a single document to show that any bill was raised by the service provider or other Govt. Authority in the name of late Sh. Ashok Kumar in respect of plot no. 199 i.e. the suit property. Rather the bills relied upon by the defendant no. 1 would go to show that all the bills pertain to the plot no. 200 which are in the name of her husband late Sh. Ashok Kumar. In this regard, DW1 (the defendant no. 1) admitted in her crossexamination that electricity connection was obtained by her husband in respect of plot No. 200 and no electricity connection was taken by her husband regarding plot No.
199. She further admitted that even today she is unable to show any document in the name of her husband regarding plot no. 199. CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 33 of 50
47. The aforesaid statement of DW2 further demolishes her case that the plot nos. 199 and 200 were swapped between plaintiff and her husband late Sh. Ashok Kumar. Had that been so, there must have been electricity bills, MTNL bills, water bills in the name of late Sh. Ashok Kumar in respect of plot no. 199. However, all the bills placed on record by the defendant no. 1 in the name of her husband belong to plot no. 200. It is highly improbable and does not appeal to the reason that if late Sh. Ashok Kumar alongwith his family was in possession of the suit property for a long period w.e.f. 1994 to 2005 as owner thereof as claimed by defendant no. 1, there would be not a single document or bill issued by the service provider in the name of late Sh. Ashok Kumar in respect of plot no. 199 and it goes to show that late Sh. Ashok Kumar was not the owner of the plot No. 199 and he was residing therein only as a permissive user as claimed by the plaintiff.
48. Although Ld. Counsel for defendant no. 1 in the written argument has submitted that after construction of the suit property upon 1 ½ storey, late Sh. Ashok Kumar took electricity, water, MTNL connection in his name in plot No. 1999 by using his paper of plot No. CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 34 of 50 200 and similarly the plaintiff after constructing one room in plot No. 200 took an electricity meter in his name using his paper of plot No. 199. From this, the Ld. Counsel for defendant no. 1 wants to convey that though the bills placed on record by the defendant no. 1 i.e. electricity bills Ex.DW1/2 (Colly), MTNL bills Ex.DW1/3 (Colly) and water bills Ex. DW1/6 (Colly) were issued in the name of late Sh. Ashok Kumar in respect of plot No. 200 but the same are in fact in respect of plot no. 199 and similarly electricity bill Ex.Pw1/2 though issued in the name of the plaintiff is in respect of plot no. 199 but the same was actually in respect of plot No. 200. However, it is not understandable as to why the service providers will issue the bills in the name of late Sh. Ashok Kumar in respect of plot No. 200 whereas the services had actually been availed by him in plot No. 199. This is very ridiculous submission made by the defendant no. 1 and is liable to be rejected.
49. It is also pertinent to note that DW1 (the defendant no. 1) has admitted in her crossexamination that her husband has not given in writing to any Govt. Department that he had become the owner of house No. 199. In her further crossexamination, she stated that she is not CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 35 of 50 aware whether any information was given to Gram Panchayat regarding execution of agreement dated 10.11.1993 Ex.PW1/D1 regarding exchange of plots. This statement of the defendant no. 1 again falsifies her claim that the plots were exchanged between the plaintiff and her husband late Sh. Ashok Kumar. Had that been so, late Sh. Ashok Kumar must have intimated to the Govt. Authority as well as to Gram Panchayat, Village Kakrola, Delhi that plot Nos. 199 and 200 which were allotted to the plaintiff and to him respectively have been exchanged between them inter se and, therefore, his name should be recorded as owner of plot no. 199 in place of the plaintiff, but that has not been done which again creates doubt on the story of the defendant no. 1 regarding swapping of plots.
50. Furthermore, during crossexamination of DW1 (the defendant no. 1) she was confronted with the photocopy of application form for grant of perpetual lease rights in respect of plot no. 200 submitted before Gram Panchayat which is Ex.DW1/PX1 and having seen the same, she stated that the same is in the handwriting of her husband and the same is signed by her husband. The document CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 36 of 50 Ex. DW1/PX1 is the application for grant of perpetual lease rights which was moved by late Sh. Ashok Kumar (husband of defendant no.
1) on 28.02.2008 for grant of perpetual lease rights in respect of plot granted under 20 point programme. The said application was moved in respect of plot No. 200. The defendant no. 1 has admitted the signature of her husband on the said application. This document again shatters the entire case of defendant no. 1 regarding swapping of plots between the plaintiff and her husband. If late Sh. Ashok Kumar had become the owner of plot no. 199 and the plaintiff had become the owner of the plot No. 200 upon swapping of plots in terms of Ikrarnama dated 10.11.1993 Ex.PW1/D1, there was no reason for late Sh. Ashok Kumar to seek perpetual lease rights in respect of plot no. 200, more so in the year 2008. Therefore, for this reason also the plea of the defendant no. 1 that plots were exchanged pursuant to Ikrarnama Ex. PW1/D1 is liable to be rejected.
51. There is yet another aspect of the matter. It is not in dispute that the plaintiff and late Sh. Ashok Kumar (husband of defendant no. 1) were allotted plot nos. 199 and 200 respectively under 20 Point CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 37 of 50 Programme by Gram Panchayat, Village Kakrola, Delhi vide certificate of allotment Ex.PW1/1 and Ex.DW1/1. Perusal of said allotment certificates shows that as per clause 3 of the same, the allottee cannot transfer or sell the plot allotted by Gram Panchayat. In view of the said bar upon the allotee, the allottee was not competent to transfer or sell the plot of land allotted to him by Gram Panchayat under 20 point programme. Therefore, plot in question bearing No. 199 allotted to the plaintiff could not have been transferred by the plaintiff in favour of his brother late Sh. Ashok Kumar and vice versa as claimed by the defendant no. 1.
52. In view of aforesaid discussions, there is overwhelming evidence to suggest that the defendant no. 1 has not been able to prove that any such Agreement/Ikrarnama Ex.PW1/D1 was executed between the plaintiff and her husband late Sh. Ashok Kumar by which they have exchanged their plots allotted to them by Gram Panchayat, Village Kakrola, Delhi. On the other hand, the plaintiff has successfully proved that the said Ikrarnama Ex.PW1/D1 is not only inadmissible in evidence being unregistered document and is hit by section 118 of Transfer of CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 38 of 50 Property Act 1882 but he has also proved that he never executed the said Ikrarnama Ex.PW1/D1 and his signature thereupon has been forged. The plaintiff thus is declared owner of the suit property bearing plot No. 199 and the Ikrarnama Ex.PW1/D1 is declared as null and void being a forged document. This issue is accordingly decided in favour of the plaintiff and against the defendant no. 1.
Issue No. (2) (Whether the plaintiff is entitled to a decree of possession in respect of plot No. 199 admeasuring 120 sq. yards falling in Khasra No. 21/2, situated in Revenue Estate of Village Kakrola, now known as Kakrola Housing Scheme Complex, New Delhi, as prayed for?)
53. The onus to prove this issue is on plaintiff. Under Issue No. 1, it has already been held that Ikrarnama Ex.PW1/D1 was not executed between the plaintiff and late Sh. Ashok Kumar and the same has been declared as null and void and the plaintiff is held to be owner of the suit property i.e. plot No. 199. Admittedly, late Sh. Ashok Kumar alongwith his family resided in the suit property upto 2005 and thereafter he shifted to his own flat at Dwarka, New Delhi after letting out the same to CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 39 of 50 defendant no. 2. Since defendant no. 1 has miserably failed to prove that her husband late Sh. Ashok Kumar was in possession of the suit property as owner thereof pursuant to Ikrarnama Ex.PW1/D1, it is established that the suit property was given to husband of the defendant no. 1 by the plaintiff for residential purposes as a permissive user only and the defendant no. 1 was residing in the suit property as a licensee. The said license was revoked by the plaintiff after the death of his brother late Sh. Ashok Kumar in the year 2011 and, therefore, the defendant no. 1 who is in constructive possession and the defendant no. 2 who is in physical possession of the suit property are liable to hand over the possession of the suit property to the plaintiff.
54. It is noteworthy that in the written arguments, it has been vehemently submitted by the Ld. Counsel for the defendant no. 1 that Late Sh. Ashok Kumar remained in possession of the suit property without any interference of the plaintiff for a long period of 11 years from 1994 to 2005 and after that he let out the suit property to the tenant and shifted to his own property. He further submitted that the plaintiff objected the peaceful possession of defendant no. 1 for the first time in CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 40 of 50 the year 2012 i.e. after about 1718 years and as such it is a clear case of ownership by adverse possession as the plaintiff has lost his legal right by virtue of Article 65 of Limitation Act 1963 and thus is not entitled to get a decree of possession of the suit property. In this regard, he has relied upon the judgment of the Hon'ble Supreme Court in Ravinder Kaur Grewal & Ors. vs. Manjit Kaur & Ors. and Radhakrishna Reddy (D) through LRs vs. G. Ayyavoo & Ors. VII (2019) SLT 1.
55. However, the said contention of the Ld. Counsel for defendant no. 1 is liable to be rejected for the reason that in the written statement, the defendant no 1 has not taken any such plea of ownership of her late husband by way of adverse possession. Rather the entire case of defendant no. 1 regarding ownership of her late husband Sh. Ashok Kumar over the suit property was based on the Ikrarnama Ex. PW1/D1 on the basis of which she has claimed that the plots were exchanged by the plaintiff and her husband. In the absence of any such pleadings, the aforesaid contention of the Ld. Counsel for defendant no. 1 cannot be accepted.
56. Furthermore, in order to claim the right/title over the CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 41 of 50 immovable property by adverse possession, necessary ingredients are required to be satisfied. It has been observed by the Hon'ble Supreme Court in Ravinder Kaur Grewal & Ors. vs. Manjit Kaur & Ors. (cited supra) that, "A person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession (c) whether the factum of possession was known to the other party (d) how long his possession has continued and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying, to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
57. Similarly, in P.T. Munichikkanna Reddy vs. Revamma, (2007) 6 SCC 59 wherein the plaintiff claimed the title based on adverse possession, the Hon'ble Supreme Court has observed that, "Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 42 of 50 possession lie in it being open, continuous and hostile." It has been further observed that, "Efficacy of adverse possession law in most jurisdictions depend on strong limitation statues by operation which right to access the Court expires through efflux of time. As against rights of the paper owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has , for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property".
58. In the present case, necessary ingredients to claim the title over the suit property by adverse possession are missing in the pleadings of defendant no.1. The defendant no. 1 in her written statement has nowhere claimed title of her husband late Sh. Ashok Kumar over the suit property by adverse possession and the entire case of the defendant no. 1 is based on the agreement/Ikrarnama Ex.PW1/D1 to claim ownership of her late husband Sh. Ashok Kumar over the suit property. The contention raised by Ld. Counsel for defendant no. 1 in the written arguments of ownership by way of adverse possession and the claim of defendant no. 1 in the written statement of ownership of her husband on CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 43 of 50 the basis of Ikrarnama Ex.PW1/D1 are mutually contradictory and hence this contention of the Ld. Counsel for the defendant no. 1 is liable to be rejected.
59. There is another reason for which this plea cannot be accepted. In the written arguments, Ld. Counsel for defendant no. 1 has also submitted that husband of the defendant no. 1 was entitled to protect his possession of the suit property on the basis of doctrine of part performance of contract/Ikrarnama incorporated in Section 53 A of Transfer of Property Act since the defendant no. 1 was in possession of the suit property in pursuance of part performance of contract/Ikrarnama dated 10.11.1993 and he has performed his part of contract by handing over the possession of plot no. 200 to the plaintiff.
60. This plea of the Ld. Counsel for the defendant no. 1 itself contradicts the plea of adverse possession. Once the defendant no. 1 claims to be in possession of the suit property in pursuance of part performance of contract/Ikrarnama dated 10.11.1993 Ex.PW1/D1, the plea of ownership by way of adverse possession goes away.
61. Further I am afraid to accept the contention of the CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 44 of 50 Ld. Counsel for defendant no. 1 with regard to doctrine of part performance of contract/Ikrarnama incorporated in Section 53 A of Transfer of Property Act. It has been held by the Hon'ble Supeme Court in Shyam Narayan Prasad case (supra) that, "It is well settled that the defendant who intends to avail the benefit of provision of Section 53 A of T.P. Act must plead that he has taken possession of the property in part performance of the contract".
62. However, in the present case, no such plea has been taken by the defendant no. 1 that her husband has taken possession of the suit property in part performance of the Ikrarnama Ex.PW1/D1. Therefore, it cannot be said that benefit u/s 53A of Transfer of Property Act was available to late Sh. Ashok Kumar.
63. In view of above, since it has come on record that the plaintiff is the owner of the suit property and late Sh. Ashok Kumar was allowed to reside in the suit property only as a permissive user and his license was revoked by the plaintiff, the defendant no. 1 who is widow of late Sh. Ashok Kumar cannot retain the possession of the suit property. The defendant no. 2 who is tenant of defendant no 1 in the suit CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 45 of 50 property is also liable to vacate the suit property as late Sh. Ashok Kumar had no right to let out the suit property. Hence, the plaintiff is held entitled to decree of possession. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
Issue no. (3) (If Issue No. 1 and 2 are decided in favour of plaintiff, whether the defendant no. 1 is entitled to the ownership and possession of plot No. 200 in the aforesaid colony?)
64. The onus to prove this issue has been placed upon the parties and under this issue it is to be decided whether the defendant no. 1 is entitled to ownership and possession of plot No. 200.
65. It has already been held under Issue No. (1) that the plaintiff is the owner of the suit plot bearing No. 199 and late Sh. Ashok Kumar was the owner of the plot bearing No. 200. In the present case, the plaintiff has not made any claim whatsoever in respect of plot No. 200. Rather it is the defendant no. 1 who is claiming ownership of the plaintiff over the plot no. 200 but the said claim of the defendant no.1 remained unsubstantiated and it stands proved that late Sh. Ashok CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 46 of 50 Kumar was the owner of the plot no. 200.
66. It is pertinent to note that during final hearing of the matter on 28.11.2019, the plaintiff has clarified that he is not in possession of the plot no. 200, Kakrola Housing Complex, Khasra No. 21/5, Opposite Patel Garden, New Delhi nor he is claiming any rights in the said plot. His statement to this effect was also recorded.
67. Further there is overwhelming evidence in the form of electricity bills Ex.DW1/2 (Colly), MTNL bills Ex.DW1/3 (Colly) and water bills Ex. DW1/6 (Colly) which clearly show the possession of late Sh. Ashok Kumar over the plot No. 200 since the year 2000 onwards. There is not a single document on record to show that the plaintiff has ever been in possession of the plot no. 200 or claimed his ownership over the same. Hence, it is held that the plaintiff has no right, title or interest over the plot no. 200 in the aforesaid colony. Since late Sh. Ashok Kumar was held to be owner of the plot no. 200, after his death the said property devolved upon his legal heirs. Thus the defendant no. 1 being widow of late Sh. Ashok Kumar is entitled to the ownership and possession of plot No. 200 in the aforesaid colony. This issue is CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 47 of 50 decided accordingly.
Issue no. (4) (Whether the plaintiff is entitled to a decree of permanent injunction as prayed for?)
68. The onus to prove this issue is on the plaintiff. It is not in dispute that the suit property was vacated by late Sh. Ashok Kumar in the year 2005 and he alongwith his family had shifted to his new house at Dwarka, New Delhi. As such, it is clear that the suit property is not in physical possession of defendant no 1. The same is occupied by defendant no. 2 who was inducted as tenant by late Sh Ashok Kumar during his lifetime. Therefore, apprehension of the plaintiff that the defendant no. 1 may create third party interest over the suit property cannot be ignored and, therefore, suit property is required to be preserved. Hence, defendant no. 1 who is in possession of the suit property without any right, title or interest cannot be allowed to transfer or alienate the same detrimental to the interest of the plaintiff who is the actual owner of the suit property. Hence, the plaintiff is entitled to decree of permanent injunction as prayed for. Accordingly, this issue is CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 48 of 50 decided in favour of the plaintiff and against the defendant no. 1.
RELIEF
69. As a sequel to my findings on the aforesaid issues, the suit filed by the plaintiff is decreed and a decree of declaration is passed in favour of the plaintiff and against the defendant no. 1 thereby declaring the plaintiff to be owner of the suit property and the agreement/Ikrarnama dated 10.11.1993 as null and void. A decree of possession is also passed in favour of the plaintiff and against the defendants in respect of suit property i.e. property bearing No. 199, measuring 120 sq. yards comprising in Khasra No. 21/2, situated within the revenue estate of colony known as Kakrola Housing Scheme Complex, Opposite Patel Garden, New Delhi - 110078 and consequently the defendants are directed to hand over the possession of the same to the plaintiff.
70. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendant no. 1 thereby restraining the defendant no. 1 from alienating, transferring or creating third party interest in the suit property till she remains in possession of the suit CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 49 of 50 property.
71. Decree sheet be prepared accordingly.
72. File be consigned to Record Room after necessary Digitally signed compliance.
BALWANT by BALWANT
RAI BANSAL
RAI Date:
BANSAL 2019.12.20
12:17:57 +0530
Announced in the open Court (Balwant Rai Bansal)
th
on 13 December, 2019 Additional District Judge05 (SouthWest) Dwarka Courts, New Delhi CS No. 16168/16 Surender Kumar vs. Rita Vashisht & Anr. Page 50 of 50