Delhi District Court
Smt. Sunri vs Sh. Sukhraj @ Iqbal on 14 November, 2014
IN THE COURT OF JAGDISH KUMAR
ADJ-06 (WEST): DELHI
RCA No. : 40/14
Unique Case ID No : 02401C0112772014
In the matter of:
Smt. Sunri
W/o Late Sh. Dharam Raj
R/o House no. RZ-T-43
Jain Colony, Part III
Uttam Nagar, New Delhi -110059 .............. Appellant
Versus
1. Sh. Sukhraj @ Iqbal
S/o Late Dharam Raj
2. Smt. Naurangi Devi
W/o Sh. Sukhraj @ Iqbal
Both R/o House no. RZ-T-43
G/F, Jain Colony, Part III
Uttam Nagar, New Delhi -110059 ........... Respondent
Date of institution of the Appeal : 21.03.2014
Date of arguments : 14.11.2014
Date of decision : 14.11.2014
JUDGMENT :-
1. This is an appeal U/s 96 CPC for setting aside order dated 07.02.2014 passed by the Ld. Trial Court in suit no. 374/11.
2. The appellant stated in the plaint that she is a resident of House no. RZ-T-43, Jain Colony, Part III, Uttam Nagar, New Delhi and also resides at H. No. 13, village Dakhinganvan, Phulpur, Azamgarh, RCA No. : 40/14 Page 1/8 UP. The respondents are her son and daughter in law. She stated that she is owner of the property bearing no. House no. RZ-T-43, Jain Colony, Part III, Uttam Nagar, New Delhi (hereinafter called the suit property), admeasuring 50 sq. yards a built up house.
3. She further stated that she has purchased a plot of land measuring 100 sq. yards but just after purchasing the same she has sold 50 sq. yards of land out of 100 sq. yards plot to one person namely Paras Yadav in the year 1986 for her personal need. The appellant alleged that at the time of execution of documents of half portion of the property bearing House no. RZ-T-43, Jain Colony, Part III, Uttam Nagar, New Delhi in the year 1986, the respondent No. 1 was also present with her being the eldest son as her other sons were minor at that time. The appellant alleged that at the time of execution of documents in favour of Paras Yadav the respondents have got executed, probably, the sale documents like GPA Agreement to sell, Will of rest of the half portion i.e. suit property in their favour fraudulently by manipulation without her consent and information.
4. The appellant stated that the respondents started asking his son Satpal to vacate the premises on 25.09.2011, as Satpal is residing on the first floor, of suit property when she has gone to her native home at Phulpur, Azamgarh, U.P. The respondents claimed themselves as owner of the suit property when she has asked to them to partition the suit property among all her legal heirs.
5. The appellant further stated that on 08.10.2011, the respondents have also tried to sell out the suit property. The appellant RCA No. : 40/14 Page 2/8 stated that the documents, probably, which has been got executed by the respondents in their favour are got executed fraudulently and without her consent and same may be declared as null and void. On the above stated facts that appellant has filed the suit which has been dismissed by the Ld. Trial Court vide judgment dated 07.02.2014. Hence, she has filed the present appeal.
6. The defence as taken by the respondents in the written statement are that on 17/18.11.1986 appellant herself had sold the remaining plot measuring 50 q. yards out of plot no. 43, Khasra no. 33/1/1, situated in village Matiala, Delhi also known as T Block Extension, Part III, Uttam Nagar, New Delhi through registered documents in favour of the defendant no. 1 against the sale consideration of Rs. 12,500/-. It is also sated by the respondents that after selling the suit property the appellant has left to her native village and since then she is residing there in the native village. It is stated by the respondents that they have allowed his brother (respondent no. 1) namely Satpal to reside in one room (tin shed) at the first floor of the suit premises being his brother as licensee. But now the intention of his brother namely Satpal got malafide and he want to usurp the suit property through the appellant. It is further stated that they are in possession of the suit property being owner of the suit property. It is further contended by the respondents in their defence that appellant has executed the documents in favour of the respondent no. 1 out of her own free and sweet will without any pressure, coercion and due influence from any corner after receiving the sale consideration before the Registrar. The respondents stated that suit filed by the appellant is false and has been filed on the instigation of his brother RCA No. : 40/14 Page 3/8 (respondent no. 1). The respondents have prayed for dismissal of the suit.
7. The appellant has challenged the judgment of Ld. Trial Court mainly on the ground that Ld. Trial Court has not appreciated the evidence properly.
8. On the pleadings of the parties, the following issues were framed by Ld. Trial Court on 29.08.2012
1. Whether plaintiff is entitled to the decree of permanent injunction as prayed for? OPP
2. Whether the plaintiff is entitled to decree of declaration as prayed for?
OPP
3. Whether the plaintiff is entitled to decree of cancellation as prayed for? OPP
4. Relief
9. I have heard Ld. Counsel for appellant and Ld. Counsel for the respondents and given my thoughtful consideration to the submission made by them.
10. It is argued by the Ld. Counsel for appellant that appellant is illiterate person and when she has sold half portion of the property bearing House no. RZ-T-43, Jain Colony, Part III, Uttam Nagar, New Delhi in the year 1986, to Sh. Paras Yadav, and the appellant has gone to the office of Registrar. Then probably, the respondents have got executed the documents with respect to RCA No. : 40/14 Page 4/8 remaining half portion of the suit property i.e. suit property in favour of respondent no. 1. It is further argued by the Ld, Counsel for appellant that appellant has not executed any document in favour of the respondents and whichever document has been got executed by the respondents are being got executing by playing fraud and mischief upon the appellant and same may be declared as null and void.
11. On the other hand it is argued by the Ld. Counsel for respondents that appellant has executed the documents in favour of respondent no. 1 by her sweet will without any pressure or undue influence after taking the sale consideration of Rs. 12,500/- and went to her native village to reside there. It is further argued that the respondent no. 1 has allowed his brother namely Satpal to reside at the first floor in a room (tin shed) being brother of the respondent but thereafter his brother became dishonest and he wants to usurp the property of respondent no. 1 through his mother i.e. appellant.
12. I have also carefully gone through the material available on record and the judgment of Ld. Trial Court. The Ld. Trial Court has given combined observation on issue no.2 & 3. So, I am also considering the issue no. 2 & 3 being interconnected with each other. Finding on one issue is having bearing on the other issue vice versa. Issue no. 2 Whether the plaintiff is entitled to decree of declaration as prayed for? OPP Issue no. 3 Whether the plaintiff is entitled to decree of cancellation as prayed RCA No. : 40/14 Page 5/8 for? OPP The onus to prove these issues are on the appellant. Since the appellant is alleging fraud being committed upon her by the respondents then it is her duty to prove the fact that fraud has been committed upon her. The thumb impression on the document Ex. DW1/5 and Ex. DW1/6 of the plaintiff are admitted but it is in dispute that these thumb impressions were taken fraudulently by the respondents. The document Ex. DW1/5 is a notarized document i.e. General Power of Attorney, the receipt of Rs. 12,500/-, Ex. DW1/6 has been registered before the Registrar. The plea of the appellant is that these documents have been got executed fraudulently, at the time when she has executed the document in favour of Sh. Paras Yadav with respect to remaining half portion of the property bearing House no. RZ-T-43, Jain Colony, Part III, Uttam Nagar, New Delhi. The alleged documents Ex. PW1/6 has been executed before Public Authority which is entrusted with the duty of registration of documents. The document has been witnessed by the Sh. Hira Lal, S/o Sh. Jalu, R/o WZ-70-Q, Vikas Vihar, New Delhi and in presence of the respondent no. 1 himself. The appellant has not examined any witness from the Public Authority i.e. Registrar. The appellant has also not examined the independent witness namely Sh. Hira Lal, S/o Sh. Jalu, R/o WZ-70-Q, Vikas Vihar, New Delhi to rebut the assertion as made in the written statement and to prove the fact that a fraud has been committed upon her. The document is duly registered one. If such type of pleas are being allowed by the Court that the document as been got executed fraudulently then there will be no sanctity of the public authorities. Here in the present suit documents Ex.DW1/5 and DW 1/6 have been got executed and registered. If a registered RCA No. : 40/14 Page 6/8 document, by a competent authority, are being declared null and void without any just and substantial evidence it will create a chosa in regards of registered documents which is not permissible. So, even otherwise on perusal of document Ex. DW1/5 and Ex. DW1/6 I find no unusuality in the typing of these documents as well as thumb impression on these documents of the appellant. Even otherwise the appellant has not disputed the thumb impression of her on these documents. The plea of the appellant also seems unusual as the appellant has only sought cancellation of the documents being got executed by the respondents in their favour. And she has not sought the possession of the suit property from the respondent. The appellant has also not examined her other two sons. The appellant is unable to bring on record any documentary proof that she is residing at the suit property.
13. Even indirect inference can be drawn against the appellant from the cross examination of PW2 who has admitted indirectly that appellant has sold the suit property to the respondent no. 1 when he deposed in his cross examination as "It is correct that I was not present when my mother sold above mentioned plot from the suit property to the defendant no. 1".
14. On the other hand respondent have categorically deposed on the same lines of their defence and nothing has come in their cross examination to rebut the assertion as made in the written statement. The appellant is unable to prove that a fraud has been committed upon her. Rather it is proved from preponderance of evidence that she herself has executed the document Ex. DW1/5 & RCA No. : 40/14 Page 7/8 Ex. DW1/6. So, the finding given by the Ld. Trial Court on these issues not required any interference. The Ld. Trial Court has decided the issues correctly.
15. Issue no. 1 Whether plaintiff is entitled to the decree of permanent injunction as prayed for? OPP The onus to prove this issue is on the appellant. Since the appellant herself has executed the General Power of Attorney in favour of the respondent no. 1 then she cannot restrain the respondent no. 1 to deal with the suit property in consonance with documents Ex. DW1/5 in contrary to law. So injunction can also not be issued in favour of the appellant. The issue has rightly been decided by the Ld. Trial Court. I find no infirmity in the order of Ld. Trial Court. The appeal is dismissed. No costs at to the suit.
The Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court (JAGDISH KUMAR)
today i.e on 14.11.2014 ADJ-06 (WEST)/DELHI
TIS HAZARI COURTS
RCA No. : 40/14 Page 8/8