Delhi District Court
Sh. Kapoor Singh vs Smt. Chandra Parbha on 3 November, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
CS NO. 13036/2016 (Old No. 286/16)
In re :
1. Sh. Kapoor Singh
S/o Sh. Mir Singh
R/o H.No. 60,
VPO Nangli Poona,
Delhi
2. Sh. Sunil Sehrawat
S/o Late Sh. Baljeet Singh Sehrawat
R/o D-2, Lord Krishna Road,
Adarsh Nagar, Delhi-110 053
3. Smt. Parveen
D/o Baljeet Singh
W/o Sh. Rajesh
R/o VPO Mandothi,
Dist. Rohtak, Haryana
4. Smt. Omwati
D/o Sh. Mir Singh
W/o Late Sh. Mahender Singh
R/o Village Bhaisroo Khurd,
P.O. Sampla, District Rohtak,
Haryana
...... Plaintiffs
Versus
1. Smt. Chandra Parbha
W/o Sh. Daulat Ram
2. Sh. Daulatram (Deceased)
Through LRs
I. Chandra Prabha
(Widow - Defendant no. 1)
CS No. 13036/16 Kapoor Singh & Anr. Vs. Chander Parbha & Ors. Page no. 1 of 10
II. Pardeep (son)
III. Sandeep (son)
IV. Kuldeep (son)
All R/o Village Sarai Pipal Thala,
Delhi-110 053
V. Kamlesh (Daughter)
W/o Ramesh
R/o Village Sahipur
Shalimar Bagh, Delhi
VI. Poonam (Daughter)
W/o Jagbir
R/o Sampla, Pana Mithuan,
District Rohtak, Haryana
3. Sh. Suresh Rana
S/o Sh. Ran Singh Rana
R/o H.No. 56, Village Nangali Poona,
Delhi-110 036
4. Sh. Hoshiar Singh
S/o Sh. Brahm Prakash
R/o H.No. 98, Village Nangali Poona,
Delhi
5. Sh. Rai Singh Rana
S/o Sh. Mir Singh
R/o H.No. 60, Village Nangali Poona,
Delhi-110 036
.......... Defendants
Date of institution of present suit : 29.03.2007
Date of receiving in this court : 09.03.2016
Date of hearing arguments : 03.11.2017
Date of Judgment : 03.11.2017
CS No. 13036/16 Kapoor Singh & Anr. Vs. Chander Parbha & Ors. Page no. 2 of 10
SUIT FOR PRE-EMPTION, CANCELLATION OF DEEDS,
DECLARATION, PERMANENT INJUNCTION AND PARTITION.
JUDGMENT
This judgment shall dispose of the suit filed by the plaintiff for preemption, cancellation of deeds, declaration, permanent injunction and partition.
Plaintiff's Case
1. Briefly stated case of the plaintiffs is that Sh Mir Singh was the owner in possession of plot measuring 1100 Sq. yards falling in khasra no. 52 in the revenue estate of village Nangli Poona, Delhi. It is stated in the plaint that Sh. Mir Singh died in the year 1989-90 leaving behind his legal heirs namely Kapoor Singh (Son), Rai Singh (Son), Smt. Omwati (Daughter), Smt. Bhagwani, widow who also died in 1995 and Smt. Sunita grand-daughter and daughter of pre-deceased son Jagat Singh.
2. It is stated that after the death of plaintiff the above said plot along with other ancestral property devolved upon his legal heirs i.e. plaintiffs no. 1 and 4, defendant no.5, his widow Smt. Bhagwani, daughter Ramrati and grand-daughter Smt. Sunita, daughter of pre-deceased son Jagat Singh. It is further stated that Ramrati has also expired and after her death her share devolved upon plaintiff no.2 and 3 in equal share each. It is further stated that Smt. Sunitra daughter of pre- deceased son Jagat Singh is married with son of defendant no. 1 and 2, has relinquished her share orally in favour of plaintiffs no. 1. It is further stated that after the death of plaintiff Mir Singh, his legal heirs raised boundary wall and other construction. It is further stated that defendant no. 5 being Karta of Hindu Undivided Family managed being ancestral and Hindu undivided Family property.
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3. It is further stated that defendant no. 5 without any legal necessity, notice, consent and knowledge of plaintiffs transferred 500 sq. yards land illegally beyond his share, out of above said Lal Dora Plot (hereinafter referred as property in dispute) through registered GPA dated 06.01.2005 in favour of defendant no.1 for a consideration of Rs.10,000/- only.
4. It is further averred that defendant no.1 executed a sale deed duly registered of the property in dispute in favour of husband i.e. defendant no.2 for a consideration of Rs.1,50,000/- on 11.07.2005. Thereafter, defendant no.2 transferred the property in dispute vide a registered sale deed dated 30.11.2005 to defendant no. 3 and 4 for a consideration of Rs.1,60,000/-, but not handed over the possession of the same. It is further averred that plaintiffs are in physical possession of the aforesaid property in dispute and there is no independent gate for the use of the property in dispute. It is averred that no partition of the property in dispute by metes and bound among the heirs of deceased plaintiff late Sh. Mir Singh has taken place .
5. It is further averred that plaintiffs have legal right to property in dispute by inheritance and by way of transfer of the property in dispute through GPA by defendant no.5 in favour of defendant no.1. It is further stated that defendant no. 5 has transferred undivided coparcenery interest without adequate consideration and transferred to defendant no.1 without any consideration. It is further averred that defendant no.5 was running a Finance Company as a director independent of HUF in the name and style of Roni Finance Ltd. at Azadpur, Delhi and defendant no. 1 and 2 has invested some amount in the said Finance Company. It is further stated averred that defendant no.5 allegedly executed simple mortgage of share of defendant no. 1 and 2 to the tune of 1/5th share in plot of 1100 Sq. yards as security for return of the CS No. 13036/16 Kapoor Singh & Anr. Vs. Chander Parbha & Ors. Page no. 4 of 10 investment. It is further averred that defendant no. 1 and 2 fraudulently got a GPA registered on 06.01.2005 from defendant no.5 in favour of defendant no.1 of 500 Sq. yards showing consideration of Rs.10,000/- only. It is further averred that on 21.01.2005, defendant no.1 and 2 along with their sons Sandeep and Kuldeep tried to take possession of the property in dispute and tried to install an independent gate demolishing the boundary wall there but could not succeed.
6. It is further averred that defendant no.2 got a sale deed registered on 11.07.2005 from his wife in his favour for a consideration of Rs.1,50,000/- and then executed a registered sale deed in favour of defendant no.3 and 4 without due process of law. It is further averred that on 23.05.2006, defendant no.3 and 4 tied to take forcible possession of the property in dispute, but due to intervention of the respectable people they could not get possession. It is further averred that on 23.05.2006, the plaintiff came to know that defendant no.5 has executed registered GPA in favour of defendant no.1 and defendant no.1 has further executed registered sale deed on 11.07.2005 in favour of her husband who in turn transferred the same to defendant no. 3 and 4 through registered sale deed 30.11.2005. It is further averred that plaintiffs are ready and willing to make payment of consideration which passes from defendant no.1 to defendant no.5 for the exercise of their preferential right. Hence plaintiff has filed the present for exercising preferential right, cancellation of documents executed by defendant No.1 in favour defendant No.2, declaration that transfer of property by defendant No.5 to be non nest, permanent injunction and documents executed by defendant No. 2 in favour of defendant No. 2 and 3 and for partition of he suit property.
Defendant's Case
7. Upon service of summons of the suit, defendants No. 1 to 4 filed CS No. 13036/16 Kapoor Singh & Anr. Vs. Chander Parbha & Ors. Page no. 5 of 10 written statement thereby raising preliminary objection to the effect that plaintiff has not approached the court with clean hands; that plaint does not disclose cause of action; that no cause of action ever accrued in favour of plaintiff; that plaintiff under the garb of the present issues want to grab the property belonging exclusively to the defendants No.3 & 4 as the same was purchased by them.
8. It has been further objected on the ground that the Act which provides the pre-emptive right is no more in operation as the Section 2 of Punjab Pre-empting Act,1973 has been repealed; that Section 4 of Partition Act which also provides for preemptive right is applicable to the dwelling house belonging to undivided family; that suit qua plaintiff No. 2 to 4 is barred by section 50 of Delhi Land Reforms Act as the said provision completely bar the right of inheritance in favour of female members of the family if male members are there; that jurisdiction of Civil Court is barred; that plaintiff was not having right of preemption on the date of sale hence suit is not maintainable and that suit is bad under Article 97 of the Limitation Act, 1963 as first transaction took place on 6.01.2005 and thereafter on 11..07.2005 and thereafter sale deed was executed on 30.11.2005 in favour of defendant No. 3 and 4 with possession.
9. It is further averred that the property in question measuring 1100 square yards out of which 500 square yards had been sold to defendant No. 1 to 4 by defendant No. 5. First transaction took place on 6.01.2005 by way of General Power of Attorney and other related documents in favour of defendant No. 1 and the possession was delivered on 6.01.2005. Defendant No.1 sold the same to defendant No. 2 by way of sale deed dated 11.07.2005 putting the defendant No. 2 in possession thereof. It is pertinent to mention here that defendant No. 1 and 2 are close relative of plaintiff. After the death of Jagat Singh brother of plantiff No. 1 and CS No. 13036/16 Kapoor Singh & Anr. Vs. Chander Parbha & Ors. Page no. 6 of 10 defendant No. 5, her widow remarried with plaintiff No. 1 and his daughter namely Smt. Sunita was also adopted by plaintiff No. 1. Smt. Sunita got married to the son of defendant No. 1 and 2.
10. On 30.11.2005 defendant No. 2 sold the suit property by way of registered sale deed in favour of defendant No. 3 and 4 and possession was delivered to them. Plaintiff No. 1 and defendant No. 5 are owners of property adjacent to the property of defendant No. 3 and 4. Plaintiff No. 1 and defendant No. 5 are hard core criminal and are facing trial in dozen of criminal cases lodged at the behest of various innocent person.
11. After the purchase of property by defendant No. 3 and 4 the above said persons continuously harassed and tortured the defendant No. 3 and 4 in order to extract more and more money from them. On 23rd April 2006 these persons demolished the common wall and other portion of the disputed property with the intention to encroach the same. However, police let them off on their written undertaking.
12. Thereafter again on various dates and occasion the said persons harassed and tortured the defendant No. 3 and 4 and defendant No. 3 and 4 have grave apprehension about their life and liberty and they further apprehend that their present plot of land may be encroached as the common wall has already been demolished.
13. On merits different denied specifically all the allegations of the plaintiff and reiterated the submissions made herein before. Defendant No.5 remained ex pattern throughout.
CS No. 13036/16 Kapoor Singh & Anr. Vs. Chander Parbha & Ors. Page no. 7 of 10 Replication
14. Plaintiff filed replication thereby denying the contents of the written statement and reiterating the contents of the plaint.
Issues
15. From the pleadings of the parties following issues were framed on 29.11.2016:-
1. Whether the suit filed by the plaintiff is collusive suit with defendant No.5?
OPD-3.
2. Whether the plaintiff has filed the present suit with an aim to take undue advantage?OPD-3
3. Whether the plaintiff is entitled for a decree of preferential right as prayed for in prayer a of the plaint?OPP
4. Whether the plaintiff is entitled for cancellation of documents prayed for prayer (b) of the plaintiff? OPP
5. Whether the plaintiff is entitled for plaint declaration as prayed ( c) of the plaint? OPP
6. Whether the plaintiff is entitled for permanent injunction as prayed (d) of the plaint? OPP
7. Whether the plaintiff is entitled for decree of partition as prayed for (dd) of the plaint?OPP
8. Relief Evidence
16. No evidence was led by plaintiff despite availing opportunity and as such plaintiffs' evidence was closed vide order dt 30.10.2017. Since plaintiff did not CS No. 13036/16 Kapoor Singh & Anr. Vs. Chander Parbha & Ors. Page no. 8 of 10 lead evidence, hence defendant No.3 & 4 also did not lead any evidence.
Findings ISSUE No. 1:- Whether the suit filed by the plaintiff is collusive suit with defendant No.5? OPD-3.
17. Onus to prove this issue is upon the defendant No. 3 but no evidence was led by him, accordingly issue No.1 is decided in favour of plaintiff and against the defendant.
ISSUE No. 2:- Whether the plaintiff has filed the present suit with an aim to take undue advantage?OPD-3
18. Onus to prove this issue is upon the defendant No. 3 but no evidence was led by him, accordingly issue No.2 is decided in favour of plaintiff and against the defendant.
ISSUE No.3:- Whether the plaintiff is entitled for a decree of preferential right as prayed for in prayer a of the plaint?OPP
19. Onus to prove this issue is upon the plaintiffs but no evidence was led by plaintiffs, accordingly issue No.3 is decided in favour of defendant and against the plaintiff.
ISSUE No.4:- Whether the plaintiff is entitled for cancellation of documents prayed for prayer (b) of the plaintiff? OPP
20. Onus to prove this issue is upon the plaintiffs but no evidence was led by plaintiffs, accordingly issue No.4 is decided in favour of defendant and against the plaintiff.
ISSUE No.5:- Whether the plaintiff is entitled for plaint declaration as prayed (
c) of the plaint? OPP CS No. 13036/16 Kapoor Singh & Anr. Vs. Chander Parbha & Ors. Page no. 9 of 10
21. Onus to prove this issue is upon the plaintiffs but no evidence was led by plaintiffs, accordingly issue No.5 is decided in favour of defendant and against the plaintiff.
ISSUE No.6:- Whether the plaintiff is entitled for permanent injunction as prayed (d) of the plaint? OPP
22. Onus to prove this issue is upon the plaintiffs but no evidence was led by plaintiffs, accordingly issue No.6 is decided in favour of defendant and against the plaintiff.
ISSUE No.7:- Whether the plaintiff is entitled for decree of partition as prayed for (dd) of the plaint?OPP
23. Onus to prove this issue is upon the plaintiffs but no evidence was led by plaintiffs, accordingly issue No.7 is decided in favour of defendant and against the plaintiff.
Relief In view of findings recorded on all issues, suit of the plaintiff is hereby dismissed.
Parties to bear their own cost.
Decree sheet be drawn accordingly.
File be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in the open court ADJ-13(Central)/THC
(Judgment contains 10 pages) Delhi/3.11.2017
CS No. 13036/16 Kapoor Singh & Anr. Vs. Chander Parbha & Ors. Page no. 10 of 10