Delhi District Court
Santosh Arora & Anr. vs . Mohan Lal Arora & Anr. on 30 January, 2021
Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
CNR NO. DLCT010000132003
SUIT NO. : 405/2017 (LEAD SUIT)
UNIQUE CASE ID NO. : 609724/2017
IN THE MATTER OF :
Sh. Mohan Lal Arora
S/o Late Sh. H.R. Arora
B3/8, 1st Floor, DLF PhaseI,
Gurgaon (Haryana). ....Plaintiff
VERSUS
1. Smt. Santosh Arora
W/o Late O.P. Arora
(since expired represented by defendants No.2
and 3 who are LRs of defendant No.1)
2. Shri Arun Arora
S/o Late O.P. Arora
3. Shri Tarun Arora
S/o Late O.P. Arora
Nos. 2 and 3 residents of:
B10/7165, Vasant Kunj,
New Delhi. ....Defendants
Suit No. 405/2017 Page 1 of 196
Suit No. 408/2017
Suit No. 407/2017
Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
SUIT FOR RECOVERY OF POSSESSION OF PROPERTY AND
FOR RECOVERY OF RS.1.20 LAC TOWARDS MESNE PROF
ITS.
Date of institution of the Suit : 31/05/2003
Date on which Judgment was reserved : 19/12/2020
Date of Judgment : 30/01/2021
AND
CNR NO. DLCT010000072001
SUIT NO. : 408/2017
UNIQUE CASE ID NO. : 609723/2016
IN THE MATTER OF :
Sh. Mohan Lal Arora
S/o Late Sh. H.R. Arora
A718, Sushant Lok1,
Gurgaon, Haryana 122002. ....Plaintiff
VERSUS
1. Shri Arun Arora
S/o Late O.P. Arora
2. Shri Tarun Arora
S/o Late O.P. Arora
Both R/o B10/7165,
Vasant Kunj, New Delhi.
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Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
For self and as Legal Representatives
of defendant no.1. ....Defendants
SUIT FOR RECOVERY OF RS.4,99,880/ (RUPEES FOUR
LAKHS NINETY NINE THOUSAND EIGHT HUNDRED
EIGHTY ONLY) AND FOR MANDATORY INJUNCTION.
Date of institution of the Suit : 19/09/2000
Date on which Judgment was reserved : 19/12/2020
Date of Judgment : 30/01/2021
AND
CNR NO DLCT010000272002
SUIT NO. : 407/2017
UNIQUE CASE ID NO. : 610067/2016
IN THE MATTER OF :
1. Smt. Santosh Arora
Wife of Late Sh. O.P. Arora,
Resident of House No. B10/7165,
Vasant Kunj, New Delhi.
2. Shri Tarun Arora
Son of Late Sh. O.P. Arora,
Resident of House No. B10/7165,
Vasant Kunj, New Delhi. ....Plaintiffs
VERSUS
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Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
1. Sh. Mohan Lal Arora
Son of Late Sh. H.R. Arora
103, Kailash Hills,
East of Kailash, New Delhi.
2. Sh. Arun Arora
S/o Late Sh. O.P. Arora
Resident of House No. B10/7165,
Vasant Kunj, New Delhi. ....Defendants
SUIT FOR PERMANENT AND MANDATORY INJUNCTION.
Date of institution of the Suit : 06/03/2002
Date on which Judgment was reserved : 19/12/2020
Date of Judgment : 30/01/2021
Presence: Shri Rakesh Tiku, Ld. Senior Advocate alongwith
Shri Jagdeep Anand, Ld. Counsel for Plaintiff.
S/Shri Tanmay Mehta, P.K.Saxena and Sandeep
Kumar, Ld. Counsel for Defendants.
[This Court is extremely grateful and thankful to the afore
said Ld. Counsels for addressing the arguments and specif
ically during the Covid Pandemic Period. Their arguments
have helped this Court to pendown the Judgment of the
long drawn litigation between the parties]
:: J U D G M E N T ::
By way of present judgment, this court shall decide the two
suits filed by the Plaintiff Shri Mohan Lal Arora and one suit filed
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Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
by defendants i.e. Smt. Santosh Arora (Since deceased represented
through LRs) and Anr. against the Plaintiff.
The Plaintiff firstly filed suit on 19.09.2000 for Recovery of
Money of Rs.4,99,880/ and for Mandatory Injunctions (hereinafter
referred to as CS No.408/2017). However, the relief of Mandatory
Injunctions was withdrawn with the liberty to file fresh suit on the
same cause of action. Accordingly, this suit is confined to recovery
of the said amount as well as pendentelite and future interest on
the said amount.
The defendants No.1 and 2 i.e. Smt. Santosh Arora (Since de
ceased represented through LRs) & Sh. Tarun Arora have filed suit
on 06.03.2002 against the Plaintiff and defendant No.2 i.e. Arun
Arora for Permanent and Mandatory Injunctions (hereinafter re
ferred to as CS No.407/2017). In this suit, the defendant No.2 is
the son and LR of Smt. Santosh Arora and he was impleaded as
proforma party only.
The Plaintiffs thereafter filed suit on 31.05.2003, which is the
Lead Suit and in this suit, the Plaintiff has claimed the possession,
recovery of amount of Rs.1,20,000/ towards arrears of Mesne
Profit and also for pendentlite and future mesne profits @
Rs.60,000/ per month (hereinafter referred to as CS
No.405/2017).
Vide Order dated 29.09.2004, CS No.408/2017 and CS
No.407/2017 were consolidated with CS No.405/2017 and it was
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observed that evidence will be recorded in the said suit which will
be read for the purpose of decision of the said suits also. It was also
observed that evidence, which was already led in CS No.408/2017,
will also be read for the purpose of decision of the said cases.
It is made clear that the parties will be referred to according to
the lead suit i.e. reference to Plaintiff' will be "Shri Mohan Lal
Arora" and reference to defendants will be "Smt. Santosh Arora
(since deceased through LRs) & Ors".
The Plaintiff has also filed another Suit bearing CS (OS)
No.1982 of 2012 claiming mesne profits and damages @ Rs.3 lacs
per month for the period from 1 st January, 2009 to 30th April, 2012.
The defendants have filed an application under Order 7 Rule 11
CPC for rejection of the Plaint, which was dismissed by Hon'ble Sin
gle Bench of Hon'ble High Court vide Order dated 27.09.2013. The
Order of Hon'ble Single Bench was challenged before the Hon'ble
Division Bench by means of FAO (OS) No.579 of 2013. The Hon'ble
Division Bench has allowed the Appeal vide Order dated
13.05.2014, however, interalia on the following observations:
"34. In the light of the aforesaid though owing to the
respondent/plaintiff in the first suit having claimed future
mesne profits and being thus disentitled to maintain a
second suit, also for recovery of mesne profits, for a period
so covered by the claim for future mesne profits in the first
suit, we are inclined to allow this appeal but by placing
following conditions on the appellants / defendants and by
giving the following clarification:
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(i) that the respondent / plaintiff in the first suit,
if found entitled to mesne profits and at a rate in
excess of the rate at which mesne profits have
been claimed in that suit, would be entitled
thereto without carrying out any amendment to
the plaint and the appellants / defendants
would not oppose the grant of mesne profits at a
rate higher than claimed on the ground of the
respondent / plaintiff in the plaint having sought
future mesne profits @ Rs.60,000/ only;
(ii) that the respondent / plaintiff if desires to
lead any evidence in the first suit (which is
stated to be at the stage of defendants evidence)
to prove a higher rate of mesne profits, would be
entitled thereto; needless to state that the
appellants / defendants would be entitled to
rebut the said evidence;
(iii) the respondent / plaintiff would be entitled to
adjust the Court Fees paid on the second suit
from which this appeal arises in the Court Fee if
found payable by him on the mesne profits if any
decreed in his favour in the first suit."
Accordingly, while deciding the Lead Suit, if the Plaintiff will
be found entitled to Mesne Profits, then this Court will also take
into consideration the aforesaid observation of Hon'ble High Court.
CASE OF THE PLAINTIFF AS PER PLAINT
Succinctly the necessary facts for just adjudication of the suit,
as stated in the plaint, are as under:
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
(a) Sh. O.P. Arora was the elder brother of the plaintiff, who ex
pired on 17.05.1998 leaving behind the defendants no. 1 to 3
as his legal representatives who succeeded to his estate. The
property bearing no. 128, Sarojini Nagar Market, New Delhi
110023, which comprises a shop and open space in the rear
on the ground floor and a residential flat on the first floor, was
initially allotted in the year 1951 by Directorate of Estates,
Government of India on licence basis in the name of Sh. Hans
Raj Arora, the father of plaintiff. After his demise in the year
1961, this property was transferred in the name of his widow
Smt. Vidya Wati, the mother of plaintiff and Sh. O.P. Arora.
Upon her demise on 02.06.1977, with the consent/no objec
tion affidavits of all her legal heirs, including Shri O.P. Arora,
this property was transferred in the name of plaintiff in the
year 1979. The allotment on license basis had continued
until 03.04.1979 when Directorate of Estates conveyed to the
plaintiff that allotment on license basis has been converted
into allotment on lease hold basis for a period of 99 years.
Thereafter, Lease Deed dated 06.04.1984 and the Deed of
Conveyance dated 06.04.1984 were executed in favour of the
plaintiff. Sh. B.K. Arora, the eldest brother of the plaintiff and
Shri O.P. Arora was one of the attesting witnesses on the said
Deeds. No brother or sister or anyone else raised any objec
tion or made any claim in this property. The plaintiff is, thus,
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
the sole owner of the said property no. 128 at Sarojini Nagar
Market, New Delhi.
(b) The plaintiff was residing in the flat on the first floor of the
above said property alongwith his family. As a gesture of emo
tion towards his elder brother and family goodwill, the plain
tiff had allowed Sh. O.P. Arora to use front portion of the shop
on the ground floor, in which he used to run a typewriting in
stitute. The rear portion of the shop was in the possession of
the plaintiff where he had tailoring workshop and cutting
room.
(c) Sh. O.P. Arora was not successful in the said business of
typewriting institute and was always hand to mouth. In the
year 1983, Punjab National Bank was looking for premises in
Sarojini Nagar Market to open a branch and came in contact
with Sh. O.P. Arora. He found an opportunity in Punjab Na
tional Bank to redeem his financial crisis by letting out the
entire property as per requirement and demand of Punjab Na
tional Bank, which had offered very good terms. Shri O.P.
Arora approached the plaintiff and narrating his sorry state of
financial condition and scarcity in which his family i.e. defen
dants no. 1 to 3 were living, implored the plaintiff to allow him
to let out the entire property to Punjab National Bank. He re
minded the plaintiff that being his younger brother, it was his
moral duty to help and support him in times and need and
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also allow him to receive the rent and utilize the same to meet
daytoday needs of his family. After much persuasion and ca
joling the plaintiff agreed to his proposal to letout the entire
property to Punjab National Bank and further, agreed that Sh.
O.P. Arora could receive and utilize the rent of the entire
ground floor, including the shop portion, whereas, the rent of
the first floor could be received by the plaintiff and be utilized
by him and further that for the said purpose, separate lease
deeds for respective floors could be executed in favour of Pun
jab National Bank. The plaintiff agreed for the above men
tioned as his moral duty towards his elder brother. Thereafter,
on the basis of the above mentioned, Sh. O.P. Arora negoti
ated and settled terms with Punjab National Bank. Conse
quently, as required, the plaintiff removed his tailoring work
shop and cutting room from the rear portion on the ground
floor. By a Special Power of Attorney, the plaintiff authorized
Shri O.P. Arora to enter into Lease Agreement with Punjab
National Bank in respect of the shop i.e. the ground floor por
tion of the demised property and to deal with the said bank
and to realize the rent of that portion. The original Special
Power of Attorney is in the power and possession of Defen
dants no. 1 to 3. Though, it is not specifically mentioned
therein but it was understood that the rent so realized by Shri
O.P. Arora would be appropriated and utilized by him and
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that this benefit was personal and exclusive to Shri O.P.
Arora.
(d) The entire property No.128, Sarojini Nagar Market, New Delhi
was consequently letout to Punjab National Bank. Shri O.P.
Arora executed a Lease Agreement dated 17.11.1983 in favour
of PNB in respect of ground floor only, on a monthly rent of
Rs.6,000/ and commencing from 05.11.1983 for three years
with option for renewal for another three years, subject to in
crease in rent by 15%. Whereas, in respect of the first floor,
the plaintiff directly executed a similar Lease Agreement in
favour of Punjab National Bank. The lease was lastly renewed
by Shri O.P. Arora and the plaintiff in favour of Punjab Na
tional Bank in the same fashion by Lease Agreements dated
15.11.91 for a period of 5 years from 15.11.91. The rent of the
ground floor was Rs.13,240/ per month, which was in
creased to Rs.15,226/ per month w.e.f. 15.11.1996. Since
the inception of tenancy, Shri O.P. Arora only interacted in all
respects with Punjab National Bank not only in respect of
ground floor but in respect of first floor of the plaintiff as well.
The plaintiff merely did his bidding.
(e) The lease in favour of Punjab National Bank was not renewed
thereafter. As the children of the plaintiff were growing up
and they, more particularly his son, were needed to be settled.
He, therefore, decided not to renew the lease any further. The
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plaintiff also told Shri O.P. Arora not to renew the lease for
any further term, as he needed the entire premises for his
own use. By then, the financial condition of Shri O.P. Arora
had also become better and his sons, the defendants no. 2 &
3 were also settled and were not dependent upon rental in
come from Punjab National Bank. Sh. O.P. Arora agreed not
to renew the lease after it was to expire on 15.11.1996 and to
get it vacated from Punjab national Bank and to handover
vacant possession thereof to the plaintiff.
(f) Punjab National Bank, however, failed to vacate the demised
premises on the expiry of the period of lease on 15.11.1996.
Consequently, as advised and decided by Sh. O.P. Arora, he
himself as well as the plaintiff, filed separate suits for recovery
of possession and mesne profits against Punjab National
Bank. By separate judgments dated 20.3.99, both the suits
were decreed for recovery of possession by Sh. P.S. Teji, Addl.
District Judge, Delhi. However, in the meanwhile, Shri O.P.
Arora unfortunately had expired on 17.5.98. Till his demise,
Sh. O.P. Arora looked after both the suits in every respects
and the plaintiff merely followed his instructions. After his
demise, the rent/damages in respect of the ground floor and
payable by Punjab National Bank was to be received by the
plaintiff, but without the knowledge of the plaintiff, the defen
dants no. 1 to 3 got themselves substituted/impleaded as
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plaintiffs in place of the deceased Sh. O.P. Arora in his suit
against Punjab National Bank.
(g) When the decree dated 20.3.99 of ejectment was passed
against Punjab National Bank, the plaintiff reminded the de
fendants no. 1 to 3 about the solemn assurance of Sh. O.P.
Arora given to him about handingover of the possession of
the shop upon Punjab National Bank vacating the same. He
also told them that they should pay to him the damages/use
and occupation charges, which they were receiving from Pun
jab National Bank after the demise of Sh. O.P. Arora. The de
fendants no. 1 to 3, however, avoided to give any straight for
ward answer to the plaintiff. In the meanwhile, challenging
the judgment/decree dated 20.3.99, Punjab National Bank
filed appeal bearing R.F.A. No. 438 of 1999 in respect of
ground floor and R.F.A. No. 435 of 1999 in respect of the first
floor in this Court. Keeping in view the noncommittal attitude
of the defendants no. 1 to 3, the plaintiff filed an application
bearing C.M. No. 1914 of 1999 in the said R.FA. No. 438 of
1999 against defendants no. 1 to 3 for being impleaded as a
party in the said appeal being the sole owner of the property
in question and entitled to the possession of the demised
premises and to receive damages/use and occupation charges
from Punjab National Bank after the demise of Sh. O.P. Arora.
The Court, however, by Order dated 3.5.2000 dismissed the
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application by holding that Sh. O.P. Arora having letout the
property to Punjab National Bank was the landlord and defen
dants no. 1 to 3 are his legal heirs and further that the ques
tion of ownership was not relevant in the case before the
Court. The Court, however, further held that the plaintiff is
entitled to claim his rights on the basis of his title to the prop
erty by taking appropriate proceedings.
(h) Subsequently, by judgment/order dated 19.5.2000, this Court
had dismissed both the said R.F.As of Punjab National Bank,
but on its request, granted time to vacate the demised
premises by 30.5.2001. Until the date of the said judgment
dated 19.5.2000, Punjab National Bank was paying
damages/use and occupation charges as an interim measure
at the last contractual rate of Rs.15,226/ p.m. However, the
Court granted time, as aforesaid, to Punjab National Bank to
vacate the demised premises subject to increase in the
monthly compensation/charges by 15%. Accordingly, from
June, 2000, Punjab National Bank started paying the said
charges to defendants no. 1 to 3 @ Rs.17,510/ p.m.
(i) The plaintiff is the sole lawful owner of the property in ques
tion. Sh. O.P. Arora only acted as an agent of the plaintiff to
letout the property to Punjab National Bank and to receive
the rent. The agency of Sh. O.P. Arora stood determined upon
his demise. Consequently, the plaintiff became entitled to re
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ceive damages/use and occupation charges of the demised
property from Punjab National Bank after the demise of Shri
O.P. Arora i.e. from June 1998. In addition thereto, the plain
tiff also became entitled to actual physical possession of the
demised property after the same was to be vacated by Punjab
National Bank on or before 30.5.2001 as per the directions of
this Court.
(j) On several occasions, the plaintiff had requested Defendants
no. 1 to 3 to pay to him the monthly charges, which they had
been receiving from Punjab National Bank since June 1998,
but they kept avoiding to give any positive answer. Having left
with no other option, the plaintiff caused a registered AD/UPC
legal demand notice dated 28.7.2000 issued to defendants no.
1 to 3 therein calling upon them to pay to him the entire ar
rears with interest @ 18% p.a. within 10 days and continue to
pay the same regularly every month in future immediately on
receiving it from Punjab National Bank. They were also called
upon to handover the possession of the demised premises to
the plaintiff immediately on Punjab National Bank vacating
the same. It was further stated therein that if the defendants
shall remain in unauthorized occupation of the suit property
after the delivery of possession thereof by the said bank, they
would be liable to pay damages/mesne profits at the market
rent of Rs.60,000/ p.m. for the period they would remain in
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unauthorized occupation. The said notice had been duly
served upon the said defendants, but they neither made pay
ment of any amount to the plaintiff nor responded to the said
notice in any other manner.
(k) The plaintiff was constrained to institute against defendants
no. 1 to 3 and Punjab National Bank as defendant no.4 on
19.9.2000 a suit in the Court of Ld. District Judge, Delhi for
recovery of use and occupation charges, which the defendants
no. 1 to 3 had received from Punjab National Bank and for
mandatory injunction for delivery of possession.
(l) The plaintiff had framed the prayer seeking mandatory in
junction in the said suit in the aforesaid manner as Punjab
National Bank had already suffered a decree of ejectment,
whereas, the defendants no. 1 to 3 herein did not have actual
physical possession of the suit property.
(m) The Punjab National Bank in the meanwhile handed over the
vacant possession of the demised shop on the ground floor of
property no. 128, Sarojini Nagar Market, New Delhi to the de
fendants no. 1 to 3 herein on 10.5.2001. On the very next
date in the said Suit i.e. on 15.5.2001 the plaintiff and his
counsel brought the aforesaid subsequent event to the notice
of the learned Addl. District Judge and in view of the defen
dants having got actual physical possession of the demised
shop, the plaintiff made an oral statement proposing not to
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press the relief claimed in Clauses (b) & (c) of the prayer para
graph in the said suit no. 30 of 2000 with permission and lib
erty being granted to him to file fresh suit for the relief of re
covery of possession. The Court while there and then ac
cepted the prayer of the plaintiff not to press reliefs under
Clauses (b) & (c) of the suit which prayer was also not op
posed by the defendants, but deferred the grant of liberty to
the plaintiff to file fresh suit on the same cause of action as
the learned counsel for the defendants herein opposed the
same and wanted to addressed detailed arguments and
sought time for the same.
(n) Soon after Punjab National Bank had handed over the posses
sion of the suit property to the defendants herein, some well
wishers of the family and market leaders intervened in the
disputes between the parties for amicable settlement thereof.
In order to create conducive atmosphere and goodwill they
were able to persuade the defendants to hand over possession
of the rear portion of the ground floor to the plaintiff and re
store the status as existed prior to letting out the property to
Punjab National Bank. In these circumstances, the defen
dants handed over the possession of the rear portion of the
ground floor of the suit property to the plaintiff sometime in
June, 2001 itself. In order to secure the shop in the front, the
defendants also got installed an iron shutter and locked it
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from inside the shop. Now, the plaintiff had the possession of
the rear portion and the defendant of the shop in the front ex
clusively. Nevertheless distrust between the parties remained.
In the meanwhile, the suit had been transferred to the Court
of Sh. Talwant Singh, the then Ld. Addl. District Judge, Delhi
and was reregistered as Suit No.658 of 2001. The attempts at
amicable settlement of disputes, however, ultimately failed
due to utter stubborn attitude of the defendants. Failure to
arrive at compromise was brought to the notice of the Court.
Vide Order dated 1.5.2003, the Court was ultimately pleased
to grant permission to the plaintiff to file suit on the same
cause of action as of prayer (b) & (c) in the said suit.
(o) After attempts at compromise failed, as a counter blast and in
order to browbeat the plaintiff, the defendants on or about
5.3.2002 filed a false and frivolous suit for permanent and
mandatory injunction against the plaintiff. The defendants
also sought to dispute the possession of the plaintiff of the
rear portion of the ground floor. The Ld. Trial Court appointed
a Local Commissioner, who reported the possession of the
plaintiff in respect of a room in the rear courtyard. The Ld.
Trial Court made interim order directing the parties to main
tain status quo. However, since the only toilet in the property
existed in the rear courtyard, the Ld. Trial Court allowed com
mon use of the toilet and the courtyard by the parties.
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(p) The defendants are in illegal and unauthorized occupation of
the front shop portion of the suit property since 10.5.2001
and utilizing the same to run their business and earn money.
On the other hand, the plaintiff, who is the lawful owner of
the suit property, is deprived of making use of the same and
is being put to loss. In any event, the defendants are liable to
pay use and occupation charges of the suit property to the
plaintiff at least at the prevailing market rate of rent of similar
property in Sarojini Nagar Market, New Delhi, which is a very
popular and thriving market of South Delhi. According to the
plaintiff, the market rent of similar shop is at least
Rs.60,000/ p.m. The plaintiff is entitled to claim mesne prof
its/ use and occupation charges from the defendants at the
said rate from 11.05.2001, which till 10.5.2003 works out to
Rs.14.40 Lakhs. The plaintiff is, however, not in a position to
bear the burden of court fee on the entire arrears and accord
ingly, in the present suit claims an amount of Rs.1.20 Lakhs
towards arrears of mesne profit/use and occupation charges
from the defendants and gives up the rest. The plaintiff is also
entitled to claim interest thereon from the defendants @ 18%
per annum. The plaintiff further claims pendentlite and fu
ture use and occupation charges/ mesne profits from the de
fendants at the prevailing market rate of rent of Rs.60,000/
p.m.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
CASE OF THE DEFENDANTS AS PER WRITTEN STATEMENT
The defendants have narrated the factual narrations under
the heading additional pleas, wherein interalia, it has been submit
ted as follows:
1. Sh. M.L. Arora, plaintiff herein, is the younger brother of Sh.
O.P. Arora, now deceased, who was the husband of Smt. San
tosh Arora, defendant no.1. Sh. Arun Arora and Sh. Tarun
Arora, defendants no. 2 and 3, are the nephews of plaintiff be
ing the two sons of deceased Sh. O.P. Arora. The parties are,
thus, very closely related to each other being the members of
one family. Lal Hans Raj Arora, who was the father of plaintiff
and the aforesaid Sh. O.P. Arora, had acquired the property
bearing no. 128, Sarojini Nagar Market, New Delhi110023
having been allotted in the year 1951 in his name by Director
of Estates, Government of India. The aforesaid property bear
ing no. 128, Sarojini Nagar Market, New Delhi110023 com
prises of two portions i.e. flat on the first floor (described as
flat no. 128, Sarojini Nagar Market, New Delhi) and ground
floor (described as shop no. 128, Sarojini Nagar Market, New
Delhi). Lala Hans Raj had, after having acquired the property
bearing no. 128, Sarojini Nagar Market, New Delhi110023,
started living on the first floor of this property alongwith his
family consisting of his wife, three sons and three daughters
as a joint Hindu family having one common mess. Two daugh
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ters had already got married before 1951. Sh. Dhanraj
(brother of Sh. Hans Raj Arora) had also been staying in the
family and all his needs were being provided from the family
income. S/Sh. B.K. Arora, O.P. Arora and M.L. Arora were
aged about 15 years, 9 years and 2 years respectively in the
year about 1951. The deceased Hans Raj Arora had started
one Shorthand Typing Commercial Centre in the name of his
youngest daughter namely Vijay Laxmi Arora, a Shorthand
Typing Commercial Centre on the ground floor of the property
bearing no.128, Sarojini Nagar Market, New Delhi110023 un
der the name and style of Vijay Commercial College in or
about the year 195152 constituting the only income and liv
ing source of the family and all the expenses of the family
were then being met with the income of the aforesaid busi
ness. Lala Hans Raj Arora had died in the year 1961 leaving
behind him, his wife Smt. Vidyawati, his three sons namely
S/Sh. B.K. Arora, O.P. Arora and M.L. Arora (plaintiff) and
also five daughters.
2. After the death of Lala Hans Raj in 1961, the aforesaid prop
erty was got mutated in the name of Smt. Vidyawati Devi,
mother of all the other legal heirs left by the deceased Hans
Raj Arora in the records of Directors of Estate by furnishing
No Objection Certificate, just out of respect and also for the
reason that she did not consider as if she was neglected and
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not properly attended/ looked after. At the time of death of
Sh. Hans Raj Arora, the three brothers i.e. S/Sh. B.K. Arora,
O.P. Arora and M.L. Arora were 25, 19 and 12 years old re
spectively. The reigns of running the business are taken over
by Sh. B.K. Arora and Sh. O.P. Arora while Sh. M.L. Arora be
ing too young to shoulder any responsibility continued to pur
sue his studies. In or about in the year 1971, with the above
arrangement of living and functioning together, while reposing
full trust and confidence in one another and steadily pro
gressing, another shop i.e. 99, Ring Road Market, Nauroji Na
gar, was acquired in the name of Sh. O.P. Arora and using
this shop another diversified business activity namely Arora
Tailor and Drapers with the sir name of the family was started
by the family. Since M.L. Arora, the youngest brother had
also, by then after completing his studies and also completed
the training in tailoring provided to him by the family and
therefore, he was entrusted with responsibility of supervising
the family business of tailors and drapers at the said shop i.e.
99, Ring Road Market, Nauroji Nagar, New Delhi. While the
other two brothers namely Sh. B.K. Arora and Sh. O.P. Arora
continued to supervise and look after the said family business
of Typing and Shorthand on the ground floor of the property
no. 128, Sarojini Nagar Market, New Delhi besides providing
necessary support and help to the tailoring business at 99,
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Nauroji Nagar, New Delhi and also at 128, Sarojini Nagar,
New Delhi where in the back portion even the tailoring work
shop was set up subsequently.
3. Smt. Vidyawati expired in the year 1977 leaving behind the
three brothers namely S/Sh. B.K. Arora, O.P. Arora and M.L.
Arora and five married daughters and these legal heirs inher
ited the suit property bearing no. 128, Sarojini Nagar Market,
New Delhi110023 left by her. All the legal heirs had decided
to have the said property duly mutated in the sole name of
plaintiff keeping in view the Government Policy, administra
tive convenience and more importantly since it was not a divi
sion in terms of value taking place and hence, reposing the
same trust, faith and confidence and exercising the same har
mony as reposed and exercised while acquiring other proper
ties and accordingly, the other LRs without any hesitation
gave No Objection Certificates in favour of M.L. Arora. The in
tention was obvious as it was not a division or partition being
effected amongst the heirs of the deceased Vidyawati, which
would have required proper consideration of the values of the
properties standing in the name of any of the three brothers,
so, it did not matter as it was joint and joint growth of the
family. The property was got mutated in the name of M.L.
Arora without any fear of fraud being done with full faith in
him that he will not commit any breach of trust of any of the
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members of the family and he also agreed to have this prop
erty mutated in his name in trust for the other members of
the family namely S/Sh. B.K. Arora, O.P. Arora and M.L.
Arora and also with an understanding that he will not claim
any right in the said property as an exclusive or sole owner
thereby taking an undue advantage of such mutations.
4. The plaintiff never became the owner of the suit property in
his own exclusive right nor any title or ownership was con
ferred by all the legal representatives left by the deceased Lala
Hans Raj Arora/Vidyawati upon him and he always held this
property in his name for and on behalf of the said Co
parcenery as a Coparcener thereof in the interest and for the
benefit and welfare of the family. This is how the property in
suit, in fact and in law, remained in the joint ownership of all
the three brothers in their equal rights and the same was even
always treated as a property of the family and not of the plain
tiff in his individual capacity. He always held this property in
suit as a Coparcener. Mere mutation of the suit property in
the records of the concerned department does not confer any
interest, right or title upon the plaintiff exclusively. Otherwise
also, the name of the plaintiff was allowed to stand in the
records of the department concerned by the other members of
the family in a fiduciary capacity as their agent, the principals
being the other family members.
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5. Before as well as after the death of Smt. Vidyawati Arora in
the year 1977, a number of other properties were also ac
quired by the family with the help and aid of the funds earned
from the joint family business, using the names of three
brothers namely S/Sh. B.K. Arora, O.P. Arora and M.L. Arora
regardless of the inequitable values of the properties reposing
the same faith, trust and confidence amongst each other.
Though, the properties differed in values, yet it did not matter
in whose name the property with what value was being ac
quired. Later on, there was an oral family partition in the
year 1983 amongst the brothers with regard to the division
and allotment of not only the properties, left by the deceased
Lala Hans Raj Arora, Vidyawati , but also the various other
joint family properties in the names of S/Sh. B.K. Arora, O.P.
Arora and M.L. Arora acquired by them with the help of joint
family funds. However, thereafter certain misunderstandings
amongst the three brothers with regard to the said oral family
partition cropped up and therefore, in order to give a final and
effective bindingness to the said oral family partition the three
brothers decided to refer the same to the arbitration of their
four brothersinlaw. Accordingly, all the three brothers
namely S/Sh. B.K. Arora, O.P. Arora and M.L. Arora had re
ferred the matter to their four real brotherinlaws (from sis
ters side) namely S/Sh. B.L. Sethi, M.L. Monga, M.L. Sethi
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and Tirath Raj for their arbitration vide letter of submission in
writing dated 29.08.1983. All the aforesaid four Arbitrators,
after hearing the parties, gave the Award dated 25.09.1983 by
recording the oral family partition that had takenplace
amongst the brothers earlier, as aforesaid, whereby the vari
ous properties were partitioned/allotted in respective names
of three brothers. While allotting the aforesaid various proper
ties amongst the brothers, it was considered by them that the
possession and goodwill of the brothers working in the various
shops should be duly maintained and not disturbed and with
that view, the various properties were allotted equitably
amongst the brothers as under:
(1) First floor of the property bearing no. 128, Sarojini Na
gar Market, New Delhi110023, was awarded/given to
the plaintiff since he was then living in this flat along
with his family;
(2) Ground floor of the said property bearing no. 128, Saro
jini Nagar Market, New Delhi was awarded/given to Sh.
O.P. Arora, who was then running a commercial insti
tute under the name and style of "Vijay Commercial Col
lege";
(3) Shop bearing no. 197 and Flat No. 110, Sarojini Nagar
Market, New Delhi was given to Sh. B.K. Arora, who was
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then living in the flat being no. 110, Sarojini Nagar Mar
ket, New Delhi;
(4) Shop at Nauroji Nagar was allotted/given to Sh. M.L.
Arora because this M.L. Arora was then running tailor
ing business there and
(5) Shop at Prem Nagar was awarded/ allotted to M.L. Arora
alongwith booking of DDA, MIG Flats.
6. In terms of the aforesaid Award/ Panchnama, Sh. O.P. Arora
had become the sole, absolute and exclusive owner of the
property in suit viz. Entire ground floor of the property bear
ing no. 128, Sarojini Nagar Market, New Delhi110023. All
the three brothers accepted the Award/ Panchnama so given
by 4 Panchas and acted upon the same as well. In terms of
the said Award, the aforesaid cutting job, which was then be
ing done at the back side of shop No. 128, Sarojini Nagar Mar
ket, New Delhi, was also shifted accordingly. In furtherance
of the Award, as orally directed by the Arbitrators, a sum of
Rs.40,000/ was also paid by Late Shri B.K. Arora and Shri
O.P. Arora each to Shri M.L. Arora for compensating Shri M.L.
Arora for arranging the tailoring work shop as is revealed by a
document recently found by the defendants while searching
the old records which document is signed by all the concerned
parties in the presence of the said Arbitrators.
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7. Sh. M.L. Arora had also executed a Deed of Disclaimer/Relin
quishment in favour of Sh. O.P. Arora whereby both the
brothers confirmed with regard to the aforesaid partition/ di
vision under the aforesaid Award in respect of the ground
floor portion of the property bearing no. 128, Sarojini Nagar
Market, New Delhi110023, having fallen to the share of Sh.
O.P. Arora and likewise, first floor over and above the said
Ground Floor having fallen in favour of Sh. M.L. Arora and the
plaintiff had released/ relinquished his rights in respect of the
ground floor of the property bearing no. 128, Sarojini Nagar
Market, New Delhi110023 in favour of Sh. O.P. Arora and
further confirmed that Sh. O.P. Arora will continue to use,
hold and enjoy the possession of the shop bearing no. 128,
Sarojini Nagar Market (Ground Floor), New Delhi110023 as
an absolute and exclusive owner thereof and that Sh. M.L.
Arora would not disturb or interfere with the exclusive use of
the said shop by Sh. O.P. Arora. This Deed of Relinquish
ment/ Disclaimer is, in fact and in law, a document whereby
the fact of the division of the properties that had already
taken place under the said Award was recorded only. This
document was duly signed by both Sh. M.L. Arora and Sh.
O.P. Arora in the presence of two witnesses namely Sh. Tirath
Raj Arora and Sh. B.K. Arora. In the aforesaid facts and cir
cumstances and also in face of the various documents, as
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submitted above, the plaintiff was, in fact and in law, left with
no rights, title and/or interest of any nature whatsoever in the
entire ground floor of the property bearing no. 128, Sarojini
Nagar Market, New Delhi which property thereafter belonged
to Sh. O.P. Arora exclusively and now, it belongs to these de
fendants as owners thereof after the death of Sh. O.P. Arora.
The defendants are, thus, the absolute and exclusive owners
of the property in suit namely the entire ground floor of the
property bearing no. 128, Sarojini Nagar Market, New Delhi
110023 and that the plaintiff has got no right, title or interest
of any nature whatsoever therein in law. The name of the
plaintiff, however, continued to remain standing in the
records of the concerned department merely as a trustee and
in fiduciary capacity for the benefit of Sh. O.P. Arora and after
his death for the answering defendants.
8. The defendant no.1 was in the year 1983 a ClassI Officer in
the Ministry of Health, Government of India, New Delhi as a
Doctor and she was getting handsome salary of Rs.28,451/
per annum. She was also allotted Government residential ac
commodation as an additional facility being in the services of
the Government of India, New Delhi. The family of Sh. O.P.
Arora alongwith defendants no. 1 to 3 was living in the said
Government accommodation situated in Sector12, R.K. Pu
ram, New Delhi. Sh. O.P. Arora was then running the same
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business of typing and shorthand institute in the shop in suit
on the ground floor of the property bearing no. 128, Sarojini
Nagar Market, New Delhi and was having sufficient income
from the institute in the year 1983. While acting upon the
said Award and Relinquishment Deed, Sh. O.P. Arora let out
his entire ground floor including the rear open courtyard
forming part of the property bearing no. 128, Sarojini Nagar
Market, New Delhi110023 to Punjab National Bank at a rent
of Rs.6,000/ per month on certain terms and conditions, as
contained in the Lease Deed dated 17.11.1983 duly signed
and executed by both Sh. O.P. Arora and the bank. Though,
the business of typing and shorthand was generating good in
come yet renting of the shop then to Punjab National Bank
had made better business sense in terms of earning, safety
and efforts and hence, was the reason that Sh. O.P. Arora let
out his ground floor to Punjab National Bank.
9. Likewise, Sh. M.L. Arora, after calculating the benefit of rent
ing the flat over and above the aforesaid shop to PNB had also
let out his first floor forming part of the property bearing no.
128, Sarojini Nagar Market, New Delhi110023 to PNB at the
rent of Rs.3500/ per month on certain terms and conditions
as contained in a separate Lease Deed of the same date and
shifted his residence to another rented accommodation to
make an incremental gain. Sh. M.L. Arora is an attesting wit
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ness of the aforesaid Lease Deed between Sh. O.P. Arora and
Punjab National Bank. After giving on rent their respective
portions to PNB, both the brothers Sh. O.P. Arora and Sh.
M.L. Arora, had also written two separate letters dated
18.11.1983 thanking PNB for taking on rent their respective
portions and also accordingly requested PNB to pay rents in
respect of their respective portions to the respective Saving
Bank Accounts only with their branch.
10. The plaintiff had further in the year 1984, in confirmation and
acceptance of the aforesaid division/partition of the properties
including the entire ground floor of the property bearing no.
128, Sarojini Nagar Market, New Delhi having been allotted to
Sh. O.P. Arora as an owner thereof and also delivered/handed
over the original Title Deeds of the ground floor portion form
ing part of the property bearing no. 128, Sarojini Nagar Mar
ket, New Delhi in the form of Conveyance Deed/Lease Deed
dated 06.04.1984, issued by the concerned department to Sh.
O.P. Arora, so as to confirm by way of collateral security with
an assurance that he will execute necessary documents of
transfer in respect of the ground floor portion in favour of Sh.
O.P. Arora. While documents in respect of Flat No. 128 were
retained by Sh. M.L. Arora only. The aforesaid lease Agree
ment dated 17.11.1983 was for a period of three years expir
ing on November, 1986, whereafter, the same was again ex
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tended by Sh. O.P. Arora for another fresh three years from
November, 1986 to November, 1989 and so, the Lease was
also extended by Sh. M.L. Arora in respect of the first floor at
the enhanced rents of their respective portions being separate
owners thereof. The deceased Sh. O.P. Arora and Sh. M.L.
Arora had in the capacity of as owners of their respective por
tions before the expiry of the extended lease in the year No
vember, 1989 sent a letter dated 28 th June, 1989 to the Man
ager, PNB (tenant) informing them that the said Lease was ex
piring in the month of November, 1989. Both of them had
also required the bank to increase the rents in respect of their
respective portions with the bank for further extension of ten
ancy. In spite of the above said correspondence, the same did
not materialize and finanlise. However, later on, a fresh Lease
Deed was executed in between O.P. Arora and PNB with re
spect to the ground floor forming part of property bearing mu
nicipal number 128, Sarojini Nagar Market, New Delhi in his
own independent right as owner thereof on 15 th November,
1991 for a further period of 5 years upto November, 1996 on a
rent of Rs.12,900/ per month calculated @ Rs.18/ per sq.
fts. Per month and likewise, an identical lease deed was exe
cuted between the bank and M.L. Arora in respect of first floor
by the bank in favour of the plaintiff with respect to the first
floor of the said property no. 128, Sarojini Nagar Market, New
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Delhi. Both Sh. O.P. Arora and Sh. M.L. Arora were the wit
nesses in each of their respective Lease Deeds. Hence, both of
them had full knowledge and concurrence with regard to own
ership of their respective floors as owners and the bank also
dealt with both of them as owners in respect of their respec
tive portions.
11. The aforesaid tenancy in the name of PNB in respect of the
ground floor in favour of Sh. O.P. Arora and in respect of first
floor in favour of Sh. M.L. Arora continued for a long period of
more than 12 years upto 1996 with various increases in rents
in respect of the two tenancies on account of renewals of the
initial lease from time to time. In view of the fact that PNB
had failed to deliver back the possession of the two floors of
their respective owners namely Sh. O.P. Arora and Sh. M.L.
Arora, therefore, both of them had even served the said bank
with two separate notices dated 08.04.1997/ 01.05.1997,
08.04.1997/ 01.05.1997 for their respective portions through
their one and the same counsel under Section 106 of the T.P.
Act whereby both of them called upon the bank to vacate their
respective portions and deliver the vacant possession of the
said portions to them respectively failing which the bank was
threatened to face the legal proceedings for their eviction in a
competent court of law.
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12. Since the bank failed with the demand as contained in the to
comply with the demand as contained in the two notices
dated 08.04.1997/ 01.05.1997 and 08.04.1997/ 01.05.1997
served upon them so both the brothers filed two different
suits in respect of their respective portions i.e. one by Shri
O.P. Arora against the Punjab National Bank titled as
"O.P.ARORA V/S. P.N.B." being suit No. 246 of 1997 in re
spect of the Ground Floor property bearing No. 128, Sarojini
Nagar Market, New Delhi, and by Shri M.L. Arora against
Punjab National Bank titled as "M. L. ARORA V/S. P.N.B" be
ing Suit No. 247 of 1997 in respect of the First Floor of prop
erty bearing No.128, Sarojini Nagar Market, New Delhi. The
counsel for both Shri O. P. Arora and Shri M. L. Arora was
Shri Yakesh Anand, Advocate, who filed both the suits on the
same day. It is relevant to mention that both the suits also re
veal that Sh. O.P. Arora is the owner of the ground floor of the
property bearing no. 128, Sarojini Nagar Market, New Delhi
and Sh. M.L. Arora in respect of the first floor. The two suits
used to the proceed in the Court of Shri P. S. Teji, the then
Ld. Additional District Judge, Delhi side by side and used to
be fixed the Court on one date for their trial. The proceedings
of these two Suits before Shri P. S. Teji, the then Ld. Addi
tional District Judge, Delhi was well within the knowledge of
Shri M. L. Arora, who was represented by the same counsel
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Shri Yakesh Anand, Advocate. This Yakesh Anand, Advocate
was engaged by both the brothers Shri O. P. Arora and Shri
M. L. Arora and used to be briefed in connection with this liti
gation by both of them. Shri O. P. Arora had died on
17.05.1998 during the pendency of suit before Shri P. S. Teji,
the then Ld. Additional District Judge, Delhi and accordingly,
these defendants being his legal heirs and representatives
were brought on record in place of the deceased Shri O.P.
Arora. The Court of Shri P. S. Teji, the then Additional District
Judge, Delhi was pleased to pass two separate decrees for
eviction against the Punjab National Bank in respect of the
two tenanted portions of Ground Floor and First Floor on the
basis of admissions made by the bank in their pleadings on
an application filed by both Shri M. L. Arora and the LRs of
the deceased Shri O.P. Arora under Order 12 Rule 6 CPC. Af
ter the death of Shri O.P. Arora, these defendants obtained
the aforesaid judgment and decree dated 20.03.1999 against
Punjab National Bank for their eviction, the plaintiff, well
knowing the factual position with regard to the ownership of
their respective portions, as enumerated above and throwing
away all morality and seeing the death of his elder brother
Shri O. P. Arora, took it as an opportunity to grab the suit
property from his own nephews and elder Bhabhi (legal heirs
of O. P. Arora). He turned dishonest so much so that he wrote
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a letter dated 24.3.1999, to the Manager, Punjab National
Bank asking him not to pay rents in respect of the Ground
Floor portion to these defendants since he for the first time
claimed himself to be the owner of this ground floor as if the
aforesaid deceased Sh. O.P. Arora was only collecting rents of
ground floor as his Attorney.
13. The plaintiff never claimed ownership of the Ground Floor or
that O.P. Arora was collecting rents in the capacity of his at
torney till the death of Shri O.P. Arora in the year 1998 be
cause the plaintiff had no face to claim ownership of the
ground floor against his elder brother O.P. Arora during his
lifetime. He became dishonest only after his death so as to
grab this property from the answering defendants. These de
fendants have been living under the mental agony since the
period 1999 when the plaintiff started falsely claiming the
ownership of the Ground Floor shop. In reply to the aforesaid
letter dated 24.03.1999, these defendants had sent a reply
dated 17.05.1999 to the bank.
14. The income tax return of both Sh. O.P. Arora and Sh. M.L.
Arora would also bring out the facts that Sh. O.P. Arora held
and enjoyed the suit property as exclusive owners thereof.
15. The plaintiff had, till the year 1999, acted upon the
Award/Panchnama, his own relinquishment deed and various
other documents thereby accepting the aforesaid Shri O.P.
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Arora as the absolute and exclusive owner of the entire
Ground Floor forming part of the property bearing No. 128,
Sarojini Nagar Market, New Delhi.
16. The aforesaid bank feeling aggrieved by the aforesaid two
judgments dated 20.09.1999 in respect of the two different
floors. During the pendency of the appeal no. 438 of 1999
filed by the bank against these defendants then pending be
fore the Hon'ble High Court of Delhi, these defendants had
filed a CM Petition being no. 20 of 2000 in the month of Janu
ary, 2000 under Section 151 CPC, whereby directions were
sought against the bank to make the payment of all the ar
rears of rents/damages w.e.f. 01.04.1999 to these defendants
which rents were withheld by the bank on account of false let
ter dated 24.03.1999. The plaintiff had filed a reply to this
application of these defendants thereby opposing the claim of
these defendants with regard to the rents/damages against
the bank. However, Hon'ble High Court of Delhi was pleased
to pass an Order dated 03.05.2000 in favour of these defen
dants and against the plaintiff. The plaintiff did not challenge
the aforesaid Order in any appropriate /higher forum. Thus,
the aforesaid Order dated 03.05.2000, on the application of
these defendants under Section 151 CPC, become final and
conclusive and binding upon the parties hereto.
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17. The plaintiff had also filed a malafide application in the appeal
bearing No. 438 of 1999 under Order 1 Rule 10 CPC for im
pleadment as a party in this appeal against these defendants
filed by the bank. This application of the plaintiff was strongly
opposed by these defendants and ultimately application of the
plaintiff was also rejected the Hon'ble High Court of Delhi by
means of the said Order dated 3rd of May, 2000.
18. The appeal being No. 438 of 1999 filed by Punjab National
Bank against these defendants was finally dismissed on
19.05.2000 with a direction to the bank to vacate the
premises namely the entire Ground Floor of property bearing
no. 128, Sarojini Nagar Market, New Delhi on/or before
30.05.2001. In terms of the aforesaid undertaking given by
the Punjab National Bank to the Hon'ble High Court of Delhi
whereby the bank was allowed to occupy the entire Ground
Floor portion and to vacate the same or/or before 30.05.2001.
The bank delivered the vacant possession of the entire
Ground Floor to these defendants on 10.05.2001 and the de
fendants had put their locks on the entire ground floor includ
ing the store room and the back portion of the ground floor.
19. The suit being No. 177 of 2003 (New) filed by these defen
dants. Vide order dated 11.03.2002, the Court was also
pleased to appoint Commissioner Smt. Neera Bhargava, Advo
cate, on the application of these defendants with certain direc
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tions, as contained in the Order dated 11.03.2002. The afore
said Local Commissioner Ms. Neera Bhargava, Advocate, had
in terms of the aforesaid directions of the Court visited the
property in suit and submitted her report dated 13.03.2002.
20. The plaintiff had on 11.03.2002 itself after the appointment of
Local Commissioner by the Ld. Predecessors of this Hon'ble
Court on 11.03.2002, before the arrival of Local Commis
sioner at site, removed the lock of these defendants on the
store, which was put by them on 10.05.2001 as submitted
hereinabove, and removed the material of these defendants
then lying in the said store room and had rather dumped his
goods therein and put up his own similar lock on this store
room in the open courtyard. This mischievous act on the part
of the plaintiff was to create false evidence and to show to Lo
cal Commissioner as if he was the in possession of the store
room on the Ground floor which factually was absolutely
wrong since these defendants were in absolute and exclusive
possession of the entire Ground Floor including the said room
after getting possession from PNB as per the directions of
Hon'ble High Court of Delhi. The plaintiff had also put an
almirah/steel cupboard in the courtyard after having removed
it from his First floor through the staircase which opens in the
courtyard. This staircase is an unauthorised construction and
was provided at the instance of the Bank during its tenancy
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for its convenience so as to make the use of the Ground Floor
and First Floor as one unit.
21. The Plaintiff also created a false story of having appointed the
deceased O.P. Arora as his Special Power of Attorney which
plea of Special Power Attorney is absolutely false and frivolous
to the knowledge of the plaintiff himself.
In addition to additional pleas, on reply merits, the contents
of the plaint have been denied and it has also been interalia sub
mitted as under:
(a) Sh. O.P. Arora had let out the entire ground floor of the prop
erty being no. 128, Sarojini Nagar Market, New Delhi110023
to the bank as an owner thereof and not in the capacity of
Special Power of Attorney. The bank always dealt with Sh.
O.P. Arora as its sole owner of this ground floor portion.
(b) It has been denied that the original Special Power of Attorney
is in power and possession of these defendants, as alleged.
This is a white lie in view of the fact that no Special Power of
Attorney was ever executed by the plaintiff in favour of Sh.
O.P. Arora as alleged. So, the question of the alleged original
Power of Attorney lying with these defendants is denied and is
out of question. The plaintiff is only concocting a false story so
as to grab the suit property. The fact is that Sh. O.P. Arora
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was receiving the rents of the ground floor portion as an
owner thereof and not as an attorney, as alleged.
The defendants have taken interalia following preliminary ob
jections:
(1) The plaintiff has got no right, title or interest of any nature
whatsoever in the suit property being the entire ground floor
forming part of the property bearing no. 128, Sarojini Nagar
Market, New Delhi110023. The plaintiff is debarred from fil
ing the present suit against the defendants in terms of Section
53A of the Transfer of Property Act. Sh. O.P. Arora in part
performance of the contract to transfer in writing duly signed
by the plaintiff, continued to remain in possession of the en
tire ground floor of the property being no. 128, Sarojini Nagar
Market, New Delhi110023 and likewise, the plaintiff contin
ued to remain in possession of the shop being no. 99, Nauroji
Nagar, Ring Road, New Delhi and both of them treated held
and enjoyed the said properties in their own independent
right as owners thereof. Sh. O.P. Arora had in furtherance of
the aforesaid contract to transfer the suit property, even let
out this ground floor to the Punjab National Bank in the year
1983 in the capacity of an owner thereof.
(2) Even otherwise also, these defendants have acquired the own
ership of the entire ground floor of the property in the suit
bearing no.128, Sarojini Nagar, New Delhi110023 by way of
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adverse possession as well. This plea is being raised by these
defendants herein in alternative to the basic plea that has
been raised by them that they are the owners of the property
in suit and are protected under Section 53A of the Transfer of
Property Act. The possession of the deceased Sh. O.P. Arora
was always notorious hostile and open to the public at large
and he was always recognized by all as owner of the suit prop
erty including the plaintiff. Sh. O.P. Arora held and enjoyed
the possession of the suit property for more than 12 years
with effect from 1983 and has, therefore, acquired the owner
ship of the suit property even by way of adverse possession.
(3) The suit of the plaintiff is not properly valued for the purposes
of court fees and jurisdiction. The market value of the prop
erty in suit is more than Rs.40 lakhs and therefore, the plain
tiff is liable to pay advalorem court fees.
(4) The plaintiff is estopped from filing the present suit by his
own conduct since or after the year 1983 and onwards till he
raised the objection for the first time in the year 1999 as per
the facts and circumstances hereinafter mentioned in detail.
(5) The suit of the plaintiff is barred under the provisions of Or
der 2 Rule 2 CPC, so far the relief of recovery of damages/
mesne profits is concerned since this claim of the recovery of
damages/ mesne profits as set up in the present suit was
available to the plaintiff even at the time when he had earlier
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filed a suit, wherein, although he claimed the relief for recov
ery of possession couched in the form of mandatory injunc
tion but not claimed in the said suit for recovery of damages/
mesne profits which he could in law have claimed in the said
suit.
REPLICATION AND ISSUES
The plaintiff filed Replication controverting the assertion made
in the Written Statement and reiterated the contents of the plaint
and also interalia made following averments:
1. Shri O.P. Arora did not come into possession of the suit prop
erty under any alleged partition/division of any alleged Joint
Hindu Family properties but in the circumstances as narrated
by the plaintiff in the plaint.
2. The allegations made in the so called Additional Pleas are
false and fabricated and have been made with sole motive to
grab the property of the plaintiff.
3. There was no joint Hindu family as such Lala Hans Raj Arora
was living along with his wife and children as members of his
family and he was maintaining the family from out of his in
come, as any father would do. In view thereof, there is no
question of there being any family income. Shri Dhanraj was
single person having no family of his own, and he did stay at
times with the family but as a guest only.
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4. The plaintiff had equal interest in the business of Vijay Com
mercial College along with his elder brothers, which they
looked after as trustees for plaintiff, who was minor. After a
couple of years of the demise of father Shri Hansraj Arora in
the year 1961, Shri B.K. Arora started living separately with
his wife and children elsewhere and eventually he bought/ac
quired in his own name flat no.110, Sarojini Nagar Market,
New Delhi and started living therein. Shri O.P. Arora got mar
ried to defendant no. 1 sometimes in the year 1967 or 1968
and thereafter he also moved out and started living separately
since the year 1972.
5. The property, which is Property No. 128, Sarojini Nagar Mar
ket, New Delhi, was the personal property of Shri Hans Raj
Arora, which upon his demise got mutated upon No Objection
of his other legal heirs, in favour of his widow Smt. Vidya
Wati. The said property as such became the personal property
of Smt. Vidya Wati. Upon her demise, with No Objection of her
all other legal heirs, including Shri B.K. Arora and Shri O.P.
Arora, the suit property got mutated in the records of L&DO
in the name of plaintiff. As such, this property became the
personal property of the plaintiff.
6. Shri B.K. Arora and Shri OP. Arora were apparently in collu
sion with each other and they did so with a view to cause
loss/harm to the plaintiff. All three brothers, it is submitted,
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were also doing their independent business and there was
nothing common between them in this regard.
7. The other properties to which the reference has been made in
the Written Statement, it is submitted, were acquired with
personal funds by the plaintiff and his brothers at various
points of time and in the respective individual names and
these remained their personal properties.
8. It would be seen from the photocopy of the alleged letter /
agreement dated 29.8.1983 the same is ex facie forged, fabri
cated and procured document. While forging / fabricating
these documents, the forgers even termed the selfacquired
and absolute property of the plaintiff at Prem Nagar and book
ing of DDA flat by him from his own personal funds, as the al
leged ancestral property and included the same in said forged
& fabricated document. The plaintiff was not party to the al
leged reference to the arbitrator, nor he signed any such writ
ing. Further, even the self acquired flat No. 110 and property
no. 197, Sarojini Nagar Market of Shri B.K. Arora, were also
termed as ancestral properties. It is submitted that none of
the properties including the suit property was/is an ancestral
property. The plaintiff, it is submitted, was neither party to
reference of any dispute to the alleged arbitrators nor he was
ever called upon to submit his claim nor he was heard by
them. It is ex facie clear that all such documents are the out
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come of collusion between the elder brothers of the plaintiff
and the so called arbitrators. The plaintiff was very much
younger to his elder brothers who used to manage family af
fairs, more particularly after the demise of the father Shri
Hans Raj Arora. The plaintiff respected them like he respected
the father and always trusted them. It is apparent that these
elder brothers of the plaintiff misused the trust of the plaintiff.
Shri M.L. Monga, besides being brotherinlaw, is also Samdhi
of Shri B.K. Arora. Shri M.L. Sethi, brotherinlaw, was also a
partner of Shri O.P. Arora and used to teach shorthand / typ
ing institute of Shri O.P. Arora. Shri Tirath Raj, brotherin
law, was also unofficially a partner of Shri B.K. Arora in his
various business including property dealing and he is now
partner with his son Shri Rajiv Arora in the business of build
ing construction and real estate. In view of the above men
tioned closeness of the said brotherinlaws / alleged arbitra
tors with the elder brothers of the plaintiff, the alleged Award
dated 25.9.1983 is clearly a manipulated and procured
Award. This is further evident from the fact that while under
the alleged Award Shri B K. Arora was allowed to remain
vested with the two properties, which he already held in his
name in individual capacity, whereas the plaintiff was made
the scapegoat. Further, the alleged Award also stated that af
ter the demise of Smt. Vidyawati, the left out valuables and
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cash were mutually divided by the brothers to their satisfac
tion, whereas the fact is no portion thereof was shared by his
elder brothers and sisters with the plaintiff at all. Since there
was no occasion to partition the properties, all of which were
personal properties of respective brothers, there was no ques
tion of any alleged equitable allotment of the same amongst
the brothers.
9. The alleged arbitrators never issued any notice to the plaintiff
requiring him to state his case and/or participate in the al
leged proceedings before them. The alleged Agreement of con
sent, Award/Panchnama and the alleged
Relinquishment/Disclaimer Deed and other alleged docu
ments attributed to the plaintiff, are selfserving documents
got manufactured/fabricated/ procured by the defendants or
their predecessor in interest, to grab the suit property of the
plaintiff.
10. The alleged Award/Panchnama and the alleged Relinquish
ment Deed/Disclaimer were executed way back in the year
1983 but these were neither ever acted upon nor these saw
the light of day until recently. A bare look at these documents
would reveal that these are manipulated and fabricated docu
ments.
11. The Ring Road Market, Nauroji Nagar, New Delhi was not a
builtup market when it was planned by L&DO in the year
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1965. In order to rehabilitate wayside petty vendors of the
area, L&DO, Government of India constructed platforms along
the Ring Road in Nauroji Nagar, of the size of 8 feet x 10 feet
and these were allotted to the vendors in the year 1965 on li
cense basis. Sometime in the year 1971, by the process of
backdoor entry (i.e. by showing partnership with the allottee
and dissolution thereof), Shri O.P. Arora got transferred in his
name the license of Platform No. 99. This market even today
is a makeshift kind of market and still continues to exist on
allotment on licence basis, which license is not transferable
except in the case of inheritance. Shri O.P. Arora as a mere li
censee of platform and it continues to be so even now. Being a
mere license, it cannot be transferred by the allottee in favour
of any other person. Moreover, being only a license, it is liable
to be revoked by the licensor at any time. It, therefore, has no
market value whatsoever. Whereas, Property No. 128, Sarojini
Nagar Market, New Delhi, is a lease hold property of the plain
tiff and the lease hold rights are transferable. There is consid
erable market value of this property. In the aforesaid circum
stances, no prudent person would bargain for such a deal, as
concocted by the defendants. Shop No. 99, Nauroji Nagar,
New Delhi, was allotted to Shri O.P. Arora on license basis
and as such there were virtually no papers of the nature of ti
tle deed, which could be handed over, as made out by the de
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fendants. The matter of fact is that after Punjab National
Bank vacated the suit premises and it became available to the
plaintiff, the plaintiff on several occasions offered to deliver
back the possession of Shop No. 99, Nauroji Nagar, New
Delhi, to the defendants but they declined the same with ulte
rior motives, with a view to stake claim to more prestigious
and valuable suit property of the plaintiff, as compared to
their inconsequential shop in Nauroji Nagar, Ring Road Mar
ket, on the basis of bogus documents and misconceived con
tentions. The matter of fact is after the plaintiff had completed
his studies and training in tailoring, he wanted to start tailor
ing business in the suit shop. Since Shri O.P. Arora did not
want to give up the possession of the ground floor shop No.
128, Sarojini Nagar Market, which was a prestigious market
of South Delhi even in those days, the plaintiff was coaxed to
start the business from Shop No. 99, Nauroji Nagar Market.
As submitted hereinbefore, the said business was exclusively
started by the plaintiff and it remains so till date. Tailoring
workshop of the plaintiff in the rear courtyard of No. 128,
Sarojini Nagar Market was set up right from the inception at
the instance of the mother, as there was no space available for
the said job in 8' x 10° Shop No. 99, Nauroji Nagar, Ring Road
Market.
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12. The alleged documents are not even otherwise lawful and
valid documents capable of being enforced in law against the
plaintiff and as such the alleged documents cannot be said to
constitute any valid contract of transfer. The alleged docu
ments purport to transfer rights in immovable properties, but
these have neither been drawn upon requisite value of stamp
paper nor these have been registered.
13. It is submitted that having given unequivocal "No Objection"
for mutation of the property in the sole name of the plaintiff,
they and/ or defendants cannot now retract from the same.
The said "No Objection" could have been conditional or at
tending documents could have been executed simultaneously
at that time, but no such right was reserved by anyone in
cluding Shri O.P Arora.
14. The salary of defendant no. 1 is a matter of Government
record. It is, however, submitted that but at the same time
Shri O.P. Arora was hardly earning anything on his own. If he
had been earning enough from typing and shorthand insti
tute, there was no question of letting out the ground floor on a
monthly rent of Rs.6,000/. On the one hand, it is alleged that
brothers trusted each other in the matter of the so called fam
ily properties and on the other hand, it is being alleged that
original title deeds were obtained from plaintiff to retain the
same as collateral security. The defendants, however, have
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not stated that if the same was kept as collateral security in
the year 1984, why no transfer documents were got executed
by Shri O.P. Arora till his demise from the plaintiff in respect
of the ground floor of the suit property. The fact is that the
plaintiff never handed over the original Conveyance/Lease
Deed to Sh. O.P. Arora for the alleged purpose, as made out
by the defendants. In fact, Sh. O.P. Arora has taken the said
documents in original from the plaintiff at the time when it
was decided to file suit for eviction of PNB at the time Sh. O.P.
Arora represented that he might require the same in his suit.
Since the plaintiff never doubted the bonafide of his elder
brother, he handedover the originals thereof to him and the
same were kept by him on one pretext or the other until the
demise and since the suits were still pending against PNB.
After his demise and decree in the suit of Sh. O.P. Arora
plaintiff demanded the return of original deeds from defendant
no.1 on several occasions but on one pretext or the other, she
avoided to return the same. The plaintiff also wrote a letter
dated 15.02.1999 to the defendant no.1 demanding the return
of original title deeds and other connected documents of his
property that may be there. On receipt of the said letter, the
defendant no.1 telephonically told the plaintiff that the file
containing the same is not traceable. After receipt of such a
response from defendant no.1 and apprehending some mis
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chief, the plaintiff wrote a letter of caution dated 01.03.1999
to L&DO. The plaintiff also filed a complaint dated
15.03.1999 with P.S. Sarojini Nagar with respect to the miss
ing title deeds. The plaintiff also got an advertisement pub
lished in Hindustan Times issue dated 20.03.1999 in respect
thereof. At this stage, the defendants did not put forward any
claim with respect to the suit property. It is, therefore, appar
ent that allegations now being made are clearly an after
thought.
15. In none of the lease deeds executed between Sh. O.P. Arora
and PNB, Sh. O.P. Arora described himself as owner of the
ground floor. It is submitted that it is Sh. O.P. Arora who had
engaged the counsel and dealt with him even on behalf of the
plaintiff. It is, however, further submitted that in his notice
under Section 106 of the T.P. Act to PNB, Sh. O.P. Arora never
claimed himself to be the owner of ground floor. Both the
suits were also being looked after by Sh. O.P. Arora only.
However, he only represented himself as the owner of the
shop no. 128, i.e. the ground floor, Sarojini Nagar Market,
New Delhi, without the knowledge of the plaintiff. The defen
dants are not entitled to take undue advantage of such unilat
eral, willful and malafide misrepresentation by Sh. O.P. Arora.
Shri O.P. Arora only dealt with the counsel in both the suits
and he only briefed the counsel. The plaintiff never ever ap
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peared in the court in the said case until the suits were de
creed in so far as relief of recovery of possession was con
cerned. After the demise of Shri O.P. Arora, the defendant
herein moved application under Order 22 Rule 3 read with
Section 151 CPC, without the knowledge of the plaintiff. The
application under Order 12 Rule 6 CPC was filed in the said
suit by the plaintiff on the advice of the counsel, but the
plaintiff was neither called upon to appear in the court nor he
appeared therein until the suit was decreed vide Judgment
dated 20.3.1999. After the suit was decreed on 20.3.1999, the
defendants with dishonest intentions openly proclaimed
themselves to be the owner of the ground floor.
16. The suit property was in the possession of Punjab National
Bank, which they had vacated after the filing of the said suit.
The plaintiff, therefore, could make any claim for future
mesne profits against the defendants after vacation of the suit
property by the said bank, more so in view of the nature of re
lief sought by the plaintiff in the said suit.
ISSUES FRAMED IN THE CASE BEARING SUIT NO.405/2017
From the pleadings of the parties, following issues were
framed on 29/09/2004:
ISSUES
1. Whether the plaintiff has no right, title or interest in the suit
property? OPD
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2. Whether the defendants are the owners of the suit property?
OPD
3. Whether the suit is not maintainable in view of Section 53A of
the Transfer of Property Act, in view of the position explained in
preliminary objection No.2 of the written statement?
4. Whether the defendants have otherwise become owner of the
suit property by way of adverse possession? OPD.
5. Whether the suit is not properly valued? OPD.
6. Whether the plaintiff is estopped from filing the present suit in
view of preliminary objection No. 7 of the written statement?
OPD
7. Whether the suit is barred u/o 2 rule 2 CPC so far as the relief
of recovery of damages/ mesne profits is concerned? OPD.
8. Whether the suit is barred by limitation? OPD.
9. Whether the plaintiff had appointed Shri O.P. Arora, the Prede
cessor in interest of the defendants as being the attorney to let
out the property in dispute and recover the rents as alleged in
the plaint. If not, to what effect? OPP.
10. Whether the plaintiff is entitled to a decree of possession as
prayed for? OPP.
11. Whether the plaintiff is entitled to recovery of a sum of Rs.1.2
lakhs on account of damages/ mesne profits as prayed for?
OPP.
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Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
12. Whether the plaintiff is entitled to damages/ mesne profits on
account of use and occupation of the suit property @ 60,000/
per month w.e.f. 11.5.2001, as prayed for?
13. Relief.
ISSUES FRAMED IN THE CASE BEARING SUIT NO.407/2017
From the pleadings of the parties, following issues were
framed on 27/11/2003:
ISSUES
1. Whether the plaintiffs are entitled to the relief of injunctions as
prayed for? OPP
2. Relief
ISSUES FRAMED IN THE CASE BEARING SUIT NO.408/2017
From the pleadings of the parties, following issues were
framed on 20/10/2003:
ISSUES
1. Whether the plaintiff is the sole owner of the property in dis
pute? OPP
2. Whether the plaintiff is entitled to the amount claimed in the
suit? OPP
3. Whether the plaintiff is entitled to interest on the suit amount, if
so at what rate? OPP
4. Whether the claim of the plaintiff with regard to the amount in
suit is not maintainable especially when the amount in suit
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Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
was directed by the Hon'ble High Court of Delhi on 3.5.2000 to
be paid by the Punjab National Bank to these defendants? OPD
5. Whether the plaintiff can cover the charges as claimed in the
suit in the absence of a proper and legal declaration with re
gard to ownership of suit property as held by Hon'ble High
Court on 3.5.2000 on application of the plaintiff in appeal
no.438/99 filed by Punjab National Bank against these defen
dants? If not to what effect? OPD
6. If the issue no.5 is decided against the plaintiff, then is the suit
required to be valued under Section 7 (iv) (c) of the Court fees
act? OPD
7. If the issues no. 5 & 6 are decided in favour of the defendants,
then has this court sufficient pecuniary jurisdiction to try this
suit? OPD
8. Whether the plaintiff had appointed Sh. O.P. Arora, the Prede
cessor in interest of the defendants, as his attorney to let out to
the PNB and recover rents from it as alleged in the plaint? OPP
9. Whether the plaint of the plaintiff is liable to be rejected under
the provisions of Order 7 Rule 11 of Code of Civil Procedure as
alleged in preliminary objections no.5 of the written statement?
OPD
10. Whether the suit of the plaintiff is bad for concealment of mate
rial facts having not been disclosed in the plaint? OPD
11. Whether the plaintiff is estopped from claiming the amount in
question of his own conduct? OPD
12. Relief.
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Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
Vide Order dated 29.01.2004, issue no. 13 (additional issue)
was framed, which is as follows:
ADDITIONAL ISSUE
"Whether the defendants have acquired ownership of the suit prop
erty by way of adverse possession as alleged in para 7 of the prelim
inary objections in their written statement? OPD"
Note: The Plaintiff has filed the suit for Possession i.e.
Lead Suit on the basis of title. This Court is compe
tent to try and entertain the suit upto the valuation
of Rupees Two Crores. In the Lead Suit, the defen
dants have claimed that the value of the property is
more than Rs.40,00,000/ and plaintiff has not val
ued the suit correctly and accordingly, Issue No.5 is
already framed in the Lead Suit i.e. whether the suit
is not properly valued. Further, Issue No.9, pertains
to rejection of the Plaint, if, the Court finally comes
to conclusion that the Plaintiff is not entitled to any
relief, then the Court will dismiss the suit of the
Plaintiff. This Court is of considered opinion that Is
sues No.5 to 7 and 9, as framed in Suit
No.408/2017, are redundant. Accordingly, in view
of the above, the issues No.5 to 7 and 9, as framed in
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Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
Suit No.408/2017, are struck off in terms of provi
sion of Order 14 Rule 5 CPC.
EVIDENCE OF THE PLAINTIFF AND DEFENDANTS AND DOCU
MENTS RELIED UPON BY THEM
The plaintiff, in order to prove his case, led plaintiff evidence
and got examined the following witnesses:
1. PW1 Sh. C.L. Makkar, UDC from L&DO, Nirman Bhawan,
New Delhi, who brought on record the following documents:
(a) Affidavits of Smt. Vijay Laxmi, Mrs. Shakuntala Rani,
Smt. Krishna Rani, Smt. Santosh Sethi, Sh. Om
Prakash, Sh. Bal Krishan, Smt. Shanta Monga and Sh.
M.L. Arora are Ex.PW1/1 to Ex.PW1/8.
(b) Letter dated 15.10.2003 as Ex.PW1/9.
(c) Letter dated 03.11.1978 as Ex.PW1/10.
(d) Letter dated 24.03.1979 as Ex.PW1/11.
(e) Letter dated 03.04.1979 as Ex.PW1/12.
(f) Lease Deeds and Conveyance Deed, both dated
06.04.1984 are Ex.PW1/13 and Ex.PW1/14.
(g) The Site Plan of the ground floor and first floor attached
with the Lease Deed and Conveyance Deed are
Ex.PW1/15 and Ex.PW1/16.
During crossexamination of this witness, following docu
ments were exhibited:
1. The application form dated 19.11.1951 as Ex.PW1/D1.
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Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
2. The letter of allotment dated 21.11.1951 as Ex.PW1/D2.
3 Photocopies of the report of Sh. R.N. Chopra and the
statement of Mr. M.L. Arora on file are Ex.PW1/D3 and
Ex.PW1/D4.
2. PW2 Sh. P.N. Jha, L.D.C. Directorate of Estate, Govt. of In
dia, New Delhi, who brought on record the following docu
ments:
(a) Letters dated 21.09.2004, 08.12.2004 and 28.12.2004
are Ex.PW2/1 to Ex.PW2/3.
(b) Letters dated 27.09.2002, 31.01.2003, 06.05.2003,
31.10.2003 are Ex.PW2/4 to Ex.PW2/7.
During crossexamination of this witness, following docu
ments were exhibited:
1. Partnership Deed dated 29.06.1970 between Sh. Deen
Dayal and Sh. Om Prakash Arora was exhibited as
Ex.PW2/D1.
2. Copy of office order no. DE/MKT/34(5), dated
21.02.1976 as Ex.PW2/8.
3. Communication and various affidavits alongwith other
documents are Ex.PW2/9 to Ex.PW2/14.
4. Cancellation Order as Ex.PW2/15.
5. The Survey Report dated 11.03.2003 is Ex.PW2/16.
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Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
6. The Show Cause Notice dated 10.10.2003 as
Ex.PW2/17.
7. Survey as Ex.PW2/18.
8. Letter dated 27.11.2003 as Ex.PW2/19.
9. Letter dated 16.8.2005 as Ex.PW2/20.
10. Survey dated 22.07.2005 is Ex.PW2/21.
11. Show Cause Notice dated 31.10.2003 as Ex.PW2/22.
12. Surveys dated 01.11.2004 and 25.11.2004 are
Ex.PW2/23 and Ex.PW2/24.
13. Survey dated 09.06.2005 as Ex.PW2/25.
14. Letter dated 21.09.2004 as Ex.PW2/26.
15. Bank Certificate of State Bank of Bikaner and Jaipur
and Death Certificate of Sh. Kishori Lal are Ex.PW2/27
and Ex.PW2/28.
3. PW3 Sh. Ajit Singh, LDC, Sub Registrar Office3, Asaf Ali
Road Delhi, who brought on record the following documents:
(a) Letters dated 21.09.2004, 08.12.2004 and 28.12.2004
are Ex.PW2/1 to Ex.PW2/3.
4. PW4 Sh. Mohan Lal Arora (Note: The affidavit in evidence
has been exhibited as Ex.PW4/A, whereas, the examination
in chief and crossexamination conducted by the Local Com
missioner, the witness has been shown as PW1), who relied
upon the following documents:
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Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
1. Notice dated 20.11.2004 as Ex.PW4/1, postal receipts
are Ex.PW4/2 to Ex.PW4/4 and UPC as Ex.PW4/5.
2. Photocopy of Notice to produce the Special Power of At
torney as Ex.PW4/6.
3. Carbon copy of Letter dated 15.02.1999 as Ex.PW4/7
and photocopy of its UPC as Ex.PW4/8.
4. Copy of Letter of Caution dated 01.03.1999 as Ex.PW
4/9.
5. Complaint dated 15.03.1991 as Ex.PW4/10.
6. A copy of Hindustan Times newspaper dated 20.03.1999
as Ex.PW4/11.
7. Copies of Judgment/ Order dated 19.05.2000 and
03.05.2000 are Ex.PW4/12.
8. Photocopy of notice dated 27.7.2000 as Ex.PW4/12,
postal receipts as Ex.PW4/14 to Ex.PW4/16, ac
knowledgement cards as Ex.PW4/17 to Ex.PW4/19
and UPC as Ex.PW4/20.
9. Site Plan as Ex.PW4/21.
10. Certified copy of Sale Deed dated 02.12.1980 as Ex.PW
4/22.
During crossexamination of this witness, following docu
ments were exhibited:
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Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
1. Income tax assessment order during the financial year
197172 and assessment year 197273 as Ex.PW1/D1.
2. Income tax order during the financial year 197374 and
assessment year 197475 as Ex.PW1/D2.
3. Computation of income, as reflected in the income tax
record for the period ending 31.3.86 for the assessment
year 198687 as Ex.PW1/D3.
4. Sealed envelope sealed with the court seal as
Ex.PW1/D4.
5. Relinquishment Deed as Ex.PW1/D5 and signatures
thereon are Ex.PW1/D6, Ex.PW1/D7 and Ex.PW1/D
8.
6. Signatures appearing at Ex.PW1/D9 on Undertaking.
7. Lease Deed Ex.PW1/D10.
8. Documents as Ex.PW1/D11 to Ex.PW1/D14.
9. Letter addressed to PNB as Ex.PW1/D15.
10. Letter as Ex.PW1/D16.
11. Letter dated 30.9.91 as Ex.PW1/D17.
12. Letters as Ex.PW1/D18 and Ex.PW1/D19.
13. Reply dated 10.11.2003 as Ex.PW4/D20.
14. Relinquishment Deed as Ex.PW4/D21.
15. Lease Deed dated 15.11.1991 as Ex.PW1/D22.
16. Reply dated 22.01.2005 as Ex.PW1/D23.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
17. Certified copy of the plaint in suit titled as M.L. Arora
Vs. Punjab National Bank as Ex.PW1/D24.
18. Certified copy of the application under Order 12 Rule 6
CPC in the suit titled as M.L. Arora Vs. PNB as
Ex.PW1/D25.
19. Application under Section 151 CPC dated 28.09.2004 as
Ex.PW 1/DX.
5. Shri Anil Kumar Yadav, Junior Assistant, office of SubRegis
trarIX, Old Terminal Tax Building, Kapashera, Delhi was ex
amined as PRW1, who have brought the following records:
(a) The document registered on 11.07.2012 as PRW1/1.
(b) Lease Agreement/Lease Deed registered on 23.01.2009 as
PRW1/2.
(c) Lease Deed registered on 18.12.2008 as PRW1/3.
[The above witness namely Shri Anil Kumar Yadav was al
lowed to be examined in view of Order dated 04.01.2018 read
with Order dated 7.08.2018. The said Orders were passed tak
ing into consideration the spirit of Order dated 13.05.2014
passed by the Hon'ble Division Bench of Hon'ble High Court
in FAO No.579/2013]
To rebut the case of the plaintiff, defendants led DE and ex
amined Sh. Tarun Arora as DW1, who tendered his evidence
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Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
through affidavit Ex.DW1/X and relied upon the following docu
ments:
1. Special Power of Attorney as Ex.DW1/1.
2. The letter written by the plaintiff to Directorate of Estates as
Ex.DW1/2.
3. The Award dated 25.09.1983 as Ex.DW1/3.
4. The Undertaking as Ex.DW1/4.
5. Certificate of Deduction of Tax dated 21.03.1983 issued by
Central Government Health Scheme to the defendant no.1 as
Ex.DW1/5.
6. Certificate of Deduction of Tax dated 31.03.1984 as Ex.DW
1/6.
7. Certificate of Deduction dated 03.04.1985 as Ex.DW1/7.
8. Copy of letter dated 18.11.1983 as Ex.DW1/8.
9. Letter dated 15.10.1991 written by Senior Manager, PNB to
Sh. O.P. Arora and Sh. M.L. Arora as Ex.DW1/9.
10. Certified copy of letter dated 11.02.1997 received from the file
of Suit No. 246/1997 titled as O.P. Arora V. PNB as Ex.DW
1/10.
11. Certified copy of plaint filed by Sh. O.P. Arora as Ex.DW1/11.
12. The certified copy of the application dated 14.07.1998 under
Order 22 Rule 3 r/w Section 151 CPC as Ex.DW1/12.
13. The certified copy of application under Order 12 Rule 6 CPC
dated 30.11.1998 in Suit No. 246/97 as Ex.DW1/13.
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Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
14. Certified copy of judgment dated 20.03.1999 passed by Sh.
P.S. Teji, the then Ld. ADJ, Delhi in Suit No. 246/97 in re
spect of the ground floor portion is Ex.DW1/14.
15. Reply dated 17.05.1999 as Ex.DW1/15.
16. Assessment Order under Section 143(1) of the Income Tax Act
for the Assessment year 198283, dated 23.11.1982, for the
Assessment Year 198384, dated 31.03.1983, for the Assess
ment year 198485 dated 27.03.1987 of Sh. O.P. Arora are
Ex.DW1/16 to Ex.DW1/18.
17. Computation of income and Statement of total assessable in
come of Sh. O.P. Arora for the Assessment year 198485 as
Ex.DW1/19 (Deexhibited and marked as MarkF being pho
tocopy).
18. The Possession Certificate as Ex.DW1/20.
19. The Site Plan filed by the present defendants in their suit
bearing no. 960/2008 as Ex.DW1/21.
20. The copy of the police complaint to SHO, Sarojini Nagar dated
25.12.2001 with acknowledgement of receipt as Ex.DW1/22.
21. The copy of the police complaint to SHO, Vinay Nagar dated
30.01.2002 with acknowledgement of receipt as Ex.DW1/23.
22. The copy of the police complaint to SHO, Vinay Nagar dated
16.02.2002 with acknowledgement of receipt as Ex.DW1/24.
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Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
23. The letter dated 21.10.2002 of defendant no.1 as Ex.DW1/25
and postal receipt dated 22.10.2002 as Ex.DW1/26 (Deex
hibited and marked as MarkA being photocopy).
24. The letter dated 01.11.2002 of defendant no.1 as Ex.DW1/27
(Deexhibited and marked as MarkB being photocopy), postal
receipt dated 02.11.2002 as Ex.DW1/28 and AD card as
Ex.DW1/29.
25. The letter dated 19.05.2003 of defendant no.1 as Ex.DW1/30
(Deexhibited and marked as MarkC being photocopy), postal
receipt dated 20.05.2003 as Ex.DW1/31 and AD card as
Ex.DW1/32.
26. The letter dated 03.06.2003 of defendant no.1 as Ex.DW1/33
(Deexhibited and marked as MarkD being photocopy), postal
receipt dated 07.06.2003 as Ex.DW1/34 and AD Card as
Ex.DW1/35.
27. The letter dated 28.06.2003 of defendant no.1 as Ex.DW1/36
(Deexhibited and marked as MarkE being photocopy), postal
receipt dated 30.06.2003 as Ex.DW1/37 and AD Card as
Ex.DW1/38.
28. Police Report dated 30.04.2002 was lodged by the defendants
with SHO, Vinay Nagar as Ex.DW1/39.
29. Certified copy of the Agreement to Sell dated 31.01.2004 as
Ex.DW1/40.
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Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
30. The duly acknowledged/receipted copy of the application
dated 11.03.2011 of the defendants under the RTI Act as
Ex.DW1/41.
31. The receipt dated 14.03.2001 of Directorate of Estates as
Ex.DW1/42.
32. The reply dated 04.04.2001 sent by Deputy Director of Es
tates as Ex.DW1/43.
33. Application dated 03.05.2001 under RTI Act submitted on
04.05.2011 as Ex.DW1/44.
34. Receipt dated 04.05.2001 of Directorate of Estates as Ex.DW
1/45.
35. Reply dated 20.05.2011 by Deputy Director of Estates as
Ex.DW1/46.
During crossexamination of this witness, following docu
ments were exhibited:
1. Complaint written by Sh. Tarun Arora to the SHO
Ex.DW1/P1.
2. Letter received by Sh. Tarun Arora as Ex.DW1/P2.
The defendants also examined the following summoned wit
nesses:
1. HC Narender Singh no. 525/SD posted at PS Sarojini Nagar,
New Delhi as DW2, who stated that summoned record with
regard to complaint dated 03.05.2001, 31.01.2002,
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Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
16.02.2002 and 30.04.2002 has been destroyed vide office or
der Ex.DW2/A upto the period 31.12.2008.
2. Sh. Sanjeev Kumar Singh, LDC, Office of Additional Director,
CGHS, South Zone, New Delhi as DW3, who stated that the
record summoned has already been destroyed. He further
submitted that Ex.DW1/6 and 7 were issued from their office
but Ex.DW1/5 has been issued from Nirman Bhawan. He
had brought the salary and TDS Certificate of Dr. Santosh
Arora from their pay bill register, which have not been de
stroyed till the date of his deposition in the Court.
3. Sh. Chander Kant Sharma, LDC, Office of Sub Registrar9,
Kapas Hera as DW4, who brought the summoned record of
agreement to sell registered as 812 in additional book no.1,
Vol. No. 1254 at pages 185 to 196 on 3012004 as Ex.DW
1/40 with the certified copy of the said agreement to sell is
sued from their office.
4. Sh. Alok Kumar, Inspector, Ward 32(2), Office of Income Tax,
Civic Centre, Delhi as DW5, who had brought a letter stating
therein that the record so stated in paras no. 1 to 3 of the let
ter dated 15.09.2014 could not be traced at Civic Centre. The
letter dated 15.09.2014 was exhibited on record as Ex.DW
5/1.
5. Sh. Jeewan Prasad, LDC in NDMC Office at Palika Kendra,
New Delhi as DW6, who have brought the summoned record
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
pertaining to shop no. 197, Sarojini Nagar Market, New Delhi,
including the letter dated 17.06.1977 of Sh. Mohan Lal Arora.
The documents i.e. Partnership Deed dated 02.08.1972, Can
cellation and Dissolution of Partnership Deed dated
24.08.1972, letter and the affidavit, both dated 17.06.1977 of
Sh. Mohan Lal Arora, allotment/ regularization letter dated
28.12.1972 and 28.03.1973 favour Bal Kishan Arora and Mo
han Lal Arora are Ex.DW6/1 to Ex.DW6/6 respectively.
6. Sh. B.N. Jha appearing on behalf of CPIO, Director of Estates,
Ministry of Urban Development as DW8, who brought the
original summoned record i.e. RTI application dated
11.03.2011 (Ex.DW1/41), RTI application dated 03.05.2011
(Ex.DW1/44), Reply dated 04.04.2011 to RTI application
dated 11/14.03.2011 (Ex.DW1/43) and Reply dated
20.05.2011 to RTI application dated 03/04.05.2011
(Ex.DW1/46).
During crossexamination, he stated that there is a dif
ference in the copy of letter dated 04.04.2011 brought by him
and Ex.DW1/43 and for the difference, he was producing the
photocopy brought Ex.DW8/P1. The photocopy of the letter
dated 03.05.2011 was Ex.DW8/P2.
7. Sh. Manoj Singh, JJA, Record Room (Sessions), Tis Hazari
Courts, Delhi as DW9, who brought the summoned record
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
and compared with the documents already exhibited as
Ex.DW1/10 to Ex.DW1/13.
The defendants also examined Sh. Teerath Raj Arora as DW7,
who tendered his evidence through affidavit Ex.DW7/A and Sh. Ra
jeev Arora as DW10, who tendered his evidence through affidavits
Ex.DW10/A & Ex.DW10/B and relied upon the following docu
ments:
1. Letter dated 07.07.1983 issued by L&DO as Ex.DW10/1.
2. Letter dated 28.07.1983 signed by the plaintiff as Ex.DW10/2
and counterfoil by the bank as Ex.DW10/3.
During crossexamination of this witness, the following docu
ments are exhibited:
1. Photocopy of statement of account and balance sheet for the
assessment year 198485 (6 pages of photocopy of assessment
and one page is photocopy of registration certificate as Mark
DW10/P1.
2. Certified copies of lease deed as Mark DW10/P2.
3. Certified copies of conveyance deed as Mark DW10/P3.
4. Documents collectively marked as Mark DW10/P4 (1 to 46
pages).
The following witnesses were allowed to give evidence in order
to give the opportunity to the defendants to rebut the additional evi
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
dence, which was allowed to the plaintiff in terms of order dated
04.01.2018 read with order dated 7.08.2018:
(a) Sh. Tarun Arora as DWRW1/A, who tendered his evidence
through affidavit Ex.DWRW1/A and relied upon the Income
Tax Returns as Ex.DWRW1/1 (Colly. - 25 pages).
(b) Sh. Manoj Meena Arora, Inspector of Income Tax, Ward No.
33(3), New Delhi from Income Tax Department, having office
at Room No. 1804, 18 th Floor, E2 Block, Civic Centre, Minto
Road, New Delhi as DWRW2, who brought the summoned
record i.e. certified copies of Income Tax Returns for the as
sessment years 200405, 200506, 200607, 200809, 2009
10, 201011, 201112, 201213, 201314 and 201415 of
Smt. Santosh Arora having PAN No. AAIPA3956H and the
same were exhibited as Ex.DWRW2/1 (Colly. - 54 pages) and
the covering letter bearing F.No.Ito Ward33/(3)/Court Mat
ter/201819/820, dated 11.02.2019 as Ex.DWRW2/2.
EVIDENCE LED IN CIVIL SUIT NO.408/2017
The plaintiff, in order to prove his case, got examined the fol
lowing summoned witnesses:
1. HC Jagdish from P.S. Sarojini Nagar as PW1, who deposed
that the summoned record has been destroyed vide Order
dated 10.06.2003 passed by Addl. DCP, South West District
and copy of the said Order was exhibited as Ex.PW1/1.
2. Sh. A.K. Roy, Assistant in Hindustan Times Ltd. as PW2.
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Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
[NOTE: LATER ON VIDE ORDER DATED 29.09.2004, THIS SUIT
WAS CONSOLIDATED WITH SUIT NO.405/2017]
ISSUE WISE FINDINGS:
ISSUE NO.5 AS FRAMED IN SUIT NO.405/2017
5. Whether the suit is not properly valued? OPD
FINDINGS AND CONCLUSIONS OF THE COURT
The onus to prove this issue was upon the defendants, how
ever, the defendants have not led any independent evidence to show
that the value of the suit property was more than Rs.40.00 lakhs, at
the time of filing of the suit, as alleged by them in the Written State
ment. The defendants have also not addressed any arguments on
this issue. The Plaintiff has valued the suit property for
Rs.12,00,000/ for the purpose of relief of possession and the de
fendants have failed to rebut the said valuation.
Accordingly, Issue No.5 (as framed in Suit No.405/2017) is
decided in favour of the Plaintiff and against the defendants.
ISSUE NO.7 AS FRAMED IN SUIT NO.405/2017
7. Whether the suit is barred u/o 2 rule 2 CPC so far as the relief
of recovery of damages/ mesne profits is concerned? OPD.
FINDINGS AND CONCLUSIONS OF THE COURT
The Plaintiff has alleged that when the earlier suit for Recov
ery and Mandatory injunctions was filed on 19.09.2000, the defen
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dants were not even in the actual and physical possession of the
suit property and therefore, at that time, there was no cause of ac
tion to claim mesne profits from the defendants.
The "mesne profits" is defined in Section 2(12) of Code of Civil
Procedure, 1908 (in Short CPC) and the same is reproduced as un
der:
"(12) "mesne profits" of property means those profits which
the person in wrongful possession of such property actually
received or might with ordinary diligence have received
therefrom, together with interest on such profits, but shall
not include profits due to improvements made by the person
in wrongful possession;"
The defendants have not addressed any arguments on this is
sue, otherwise also, the mesne profits can be claimed for unautho
rized and illegal occupation of the property and the same is contin
uing cause of action and it will continue to arise till the wrongful
possession remains with the person. The "mesne profits" can be
claimed upto the period of filing of the suit and even for pendentlite
and future period. If, the litigant restricts his claim upto the date of
filing of the suit, still, by way of subsequent suit, however, subject
to period of limitation, he can claim mesne profits as it is continu
ing cause of action which may arise on each day of wrongful pos
session. Therefore, it cannot be said that the provision of Order 2
Rule 2 CPC will attract to curb the right of the Plaintiff to claim the
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"mesne profits" specifically which is subsequent to the period of
earlier suit.
The plaintiff has claimed the "mesne profits" for two months
prior to filing of the suit and pendentlite and future mesne profits
and in view of discussions made hereinabove, the bar under Order
2 Rule 2 CPC for the relief of claiming of the "mesne profits" is not
attracted. However, it is made clear that this Court is not express
ing any opinion, while deciding this issue that the defendants
were/are in wrongful or illegal possession of the suit property and
the same will be dealt up and decided, while adjudicating the other
issues specifically the issue of ownership of the parties.
Accordingly, issue No.7 is also decided in favour of the Plain
tiff and against the defendants.
ISSUES NO. 1, 2, 6 & 9 TO 12 AS FRAMED IN SUIT
NO.405/2017
1. Whether the plaintiff has no right, title or interest in the suit
property? OPD
2. Whether the defendants are the owners of the suit property?
OPD
6. Whether the plaintiff is estopped from filing the present suit in
view of preliminary objection No. 7 of the written statement?
OPD
9. Whether the plaintiff had appointed Shri O.P. Arora, the Prede
cessor in interest of the defendants as being the attorney to let
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out the property in dispute and recover the rents as alleged in
the plaint. If not, to what effect? OPP.
10. Whether the plaintiff is entitled to a decree of possession as
prayed for? OPP.
11. Whether the plaintiff is entitled to recovery of a sum of Rs.1.2
lakhs on account of damages/ mesne profits as prayed for?
OPP.
12. Whether the plaintiff is entitled to damages/ mesne profits on
account of use and occupation of the suit property @ 60,000/
per month w.e.f. 11.5.2001, as prayed for?
ISSUES NO.1 TO 3, 8, 10 AND 11 AS FRAMED IN SUIT
NO.408/2017
1. Whether the plaintiff is the sole owner of the property in dis
pute? OPP
2. Whether the plaintiff is entitled to the amount claimed in the
suit? OPP
3. Whether the plaintiff is entitled to interest on the suit amount, if
so at what rate? OPP
8. Whether the plaintiff had appointed Sh. O.P. Arora, the Prede
cessor in interest of the defendants, as his attorney to let out to
the PNB and recover rents from it as alleged in the plaint? OPP
10. Whether the suit of the plaintiff is bad for concealment of mate
rial facts having not been disclosed in the plaint? OPD
11. Whether the plaintiff is estopped from claiming the amount in
question of his own conduct? OPD
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The aforesaid issues are interrelated and interconnected with
each other. Moreover, the discussion on the aforesaid issues may
have overlapping discussion on the pleadings of the parties, evi
dence led by the parties and arguments addressed by the parties.
Accordingly, they are dealt with and decided together.
ON THE QUESTION WHETHER THERE EXISTED JOINT FAMILY
BUSINESS AND JOINT FAMILY PROPERTIES.
ADMITTED FACTS
The following facts are admitted by the parties either on
pleadings or evidence or otherwise:
(i) Sh. Hans Raj Arora had started shorthand, typing commercial
centre under the name and style of "Vijay Commercial
College" in the suit property in the years 195152 and he
along with his wife, three sons and three unmarried
daughters were living jointly and two of her daughters were
married prior to partition.
(ii) The said business was run by Sh. H.R. Arora with the help of
S/Sh. B.K. Arora and Sh. O.P. Arora. The Plaintiff in his cross
examination held on 11.01.2007 has admitted that, "I cannot
say if Sh. B.K. Arora and Sh. O.P. Arora also helped my father
in doing that business. Again said, they used to help my father
in conduct of that business. They continued their help to my
father till the time of his death."
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(iii) Sh. H.R. Arora died intestate in 1962. The licenses of the
Shop No. 128 and flat No.128, Sarojini Nagar Market, New
Delhi got mutated in the name of Smt. Vidyawati, mother, in
the records of the department i.e. Directorate of Estates, by
giving NOCs by other legal heirs.
(iv) The plaintiff was only 12 years of age at the time of death of
Sh. H.R. Arora and Smt. Vidyawati was Housewife/Home
maker. S/Sh. B.K. Arora and Sh. O.P. Arora continued to
manage the said business of "Vijay Commercial College",
however, Smt. Vidyawati was shown as proprietor of the
business. The plaintiff has admitted in his crossexamination
held on 24th January, 2007 that:
"...My elder brothers conducted business of Commercial
College after death of my father under proprietorship of my
mother..."
"...It is correct that my mother was holding business of
Commercial College, after death of my father on her behalf
as well as on behalf of other family members...."
(v) Income Tax Returns for the business were filed in name of
Smt. Vidyawati. The Plaintiff in the Replication as well in the
crossexamination has also asserted that he had equal
interest in the said business, which the elder brothers
continued to look after.
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(vi) The Plaintiff has not brought anything record that except the
said business there was any other source of income. Thus, the
said business was the sole source of income and funds from
which the needs of all the family members were catered from
the year 1951/52 till 1971. In the year 1971, Tailoring
business was also set up.
(vii) The 3 unmarried daughters of the family were also got
married and had become parts of their respective marital
households. The marriages of Sh. O.P. Arora and Sh. M.L.
Arora (the plaintiff) took place respectively in the years 1967
and 1974.
(viii) In the year 1971, the Shop no.99, Nauroji Nagar, Ring Road,
New Delhi in the name of Sh. O.P.Arora was acquired. It was a
licensee shop. The business of Arora Tailors and Drapers were
started from the said premises. The plaintiff had been
provided education up to graduation level and also the
training in tailoring. He was looking after the business of
tailoring set up in the said shop. Income Tax Returns for this
business were filed in name of Sh. O.P. Arora until the year
1983. The plaintiff has in his crossexamination held on
25.01.2007 and 09.11.2010 admitted, he was doing business
from 1971 till 2004 in Shop no.99 and Sh. O.P. Arora was
doing business in Commercial College till 1983.
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(ix) In the year 1972, Shop no.197 (Coal Depot), Sarojini Nagar
Market, New Delhi, in the joint names of the two brothers, Sh.
B.K. Arora and Sh. M. L. Arora was acquired. It was 176 sq.
yds in size, it was backside of the market. This is was also a
licensee shop. In 1973, flat no.110 was acquired in the name
of Late Sh. B.K. Arora. The said property was also licensee
property.
(x) The tailoring workshop was also set up in the back courtyard
of Shop no.128 (the suit property) to support the tailoring
business.
(xi) The Income Tax Returns in respect of the commercial college
being run in the suit property were being filed in the name of
mother Smt. Vidyawati, which as per admission of the Plaintiff
"she was holding after the death of Sh. Hans Raj Arora, for
herself and on behalf of other members of the family" and that
of the Tailoring Business being run in Shop no.99, Nauroji
Nagar, Ring Road, New Delhi was being filed in the name of
Sh. O.P. Arora.
(xii) Smt. Vidyawati died on 2nd June, 1977 leaving behind 3 sons
and 5 married daughters.
ARGUMENTS ON BEHALF OF DEFENDANTS
(a) The Directorate of Estates, Government of India had a policy
to regularize the allotment in favour of legal heirs of deceased
allottee, under which first preference was given to his widow
and in case she was not alive or not willing to take allotment,
to allot the premises in the name of any one son or daughter
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whom all the surviving sons or daughters of the deceased
allottee collectively nominate. This policy dated 21st February,
1976 is Exh. PW2/8 and proved by the Plaintiff's witness Sh.
B.N. Jha, PW2, from Directorate of Estates, got examined by
the Plaintiff himself. The relevant part of cross examination
dated 24.08.2005 of the said PW2 in this regard is under:
"It is correct that in terms of Exh PW2/8 in a case where the
deceased allottee dies leaving behind a number of LRs then
in that situation mutations were only effected in the name of
one individual on furnishing no objection from other LRs
although such LRs may have claim over the allotted
premises."
(b) Defendant no.3 had sought information about the above
policy under RTI, vide application (ExhDW1/41) also Exh.
DW8/P2 and the Office of the Directorate of Estates,
Government of India vide its reply dated 4th April, 2011 (Exh
DW1/43) also (ExhDW8/P1) has confirmed the above policy.
In ExhDW8/P1 (also Exh DW1/46) Directorate of Estate has
replied that "You are hereby informed that it is not permissible
in Rules to regularize the shop in the name of such legal heir
who already had a shop."
(c) In view of the above mentioned policy of the Directorate of
Estates (ExhPW2/8), since Shop no.99, Nauroji Nagar, Ring
Road, New Delhi allotment being already in the name of Sh.
O.P. Arora and Shop 197, Sarojini Market being in the joint
names of Sh. B.K. Arora and Sh. M.L. Arora, on the death of
the mother Smt.Vidyawati, the allotment of shop 128 and flat
128, Sarojini Market, could not have been regularized in the
names of all or any of the 3 brothers, none of them being
eligible to be nominated.
(d) Thus, keeping in view Govt. Policy and administrative
convenience, that involved minimal changes, it was mutually
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decided to have the name of Sh. M.L. Arora withdrawn as an
allottee of 197, Sarojini Nagar Market to make him available
and eligible under the policy to be nominated for the
regularization of the allotment of the said property in his
name, to be held by him for and on behalf of all the 3
brothers. Accordingly, Sh. M.L. Arora wrote a letter dated
17th June, 1977 to Dy. Directorate of Estates (EXDW1/2)
requesting for the deletion of his name from the allotment of
Shop no.197, on the basis of which his name was deleted as
an allottee of Shop no.197, Sarojini Nagar, New Delhi. Once
this was achieved, a request was made to the Directorate of
Estates to regularize the allotment of the said property (Flat
128 and Shop no.128, Sarojini Market, New Delhi) in the
name of Sh. M.L. Arora with no objection in the form of
affidavits from the other legal heirs, with the understanding
that he will be holding the same for and on behalf of all the 3
brothers, in the same manner as Sh. B.K. Arora was holding
Shop no.197, Sarojini Nagar, New Delhi and Sh. O.P. Arora
was holding Shop no.99, Nauroji Nagar, Ring Road, New Delhi
for the other two brothers. Once the allotment of the said
property including the Suit Property was regularized in the
name of the plaintiff, the Income Tax Returns of the
Commercial College, although run by the two elder brothers
Sh.B.K. Arora and Sh.O.P. Arora, started to be filed in the
name of Sh.M.L. Arora although, the said business was joint
of all the three brothers.
(e) The above facts and documents clearly establish the reasons
and circumstances under which the said property's allotment
was mutated in the name of the plaintiff on the death of the
mother. It was only to be held for and on behalf of the family
in the same manner as it was in prior being held in the name
of their mother and as Sh. B.K. Arora was holding Shop
no.197, Flat no. 110, Sarojini Nagar, New Delhi and Sh. O.P.
Arora was holding Shop no.99, Nauroji Nagar, Ring Road, New
Delhi for and on behalf of the family.
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(f) The regularization of Flat 128 & Shop no.128 in the name of
the plaintiff in terms of the Government policy was at best a
mutation in the record of the Directorate of Estates and did
not amount to relinquishment of rights by the brothers in the
said property. In this regard reference is made to the
judgment of the Hon'ble Supreme Court in the case of H.
Lakshmaiah Reddy & Ors. Vs. L. Venkatesh Reddy
[(2015) 14 SCC 784] (Relevant paras 2, 7 & 8).
(g) The plaintiff has made a false statement on oath during his
crossexamination held on 25th January, 2007 that "..the
consideration for giving NOCs by other LRs in my favour was
that during the lifetime of my mother my other brothers
purchased properties with the help of mother and I was not
having any property and it was also wish of my mother that
certificate was given in my favour.." This statement was
contrary to and beyond the pleadings and also factually
incorrect. The plaintiff deliberately made this false statement
on oath to mislead the Court, as Shop no.197, Sarojini
Market, New Delhi was in the joint names of the plaintiff and
the elder brother Sh. B.K. Arora (since 1972) which is clear
from ExhDW1/2, wherein the plaintiff had requested for
deletion of his name. Despite this admitted factual position,
the plaintiff continued with his said false stand and tried to
conceal the said fact. During his crossexamination on 8th
August, 2011 the plaintiff again made a false statement on
oath claiming ignorance of the fact that the allotment of Shop
no.197, Sarojini Market, New Delhi was in the joint names of
Sh. B.K. Arora and Sh. M.L. Arora and when he was
confronted with letter dated 17th June, 1977 written by him
to Dy. Dir. Of Estates for deletion of his name but the plaintiff
denied his signatures on the said letter and knowingly and
deliberately lied on oath and the said document was marked
as Mark 'X'. Consequently, the application dated 26th
September, 2011 was submitted to the Court for summoning
the additional witness and record from NDMC to establish the
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falsehood of the plaintiff. The said application was opposed
tooth and nail by plaintiff but was allowed by the Hon'ble
Court. The relevant record was produced and proved by DW6,
witness from NDMC, as ExDW6/1 to DW6/6. Despite the
production of the said record, the plaintiff refused to admit
his signature. Resultantly, application under Section 45 of the
Evidence Act for examination of the signature of the plaintiff
by expert was filed and whereupon, plaintiff admitted his
signature on the document (ExDW1/2) and his statement to
that effect was recorded on 17th June, 2017, about which he
continued to make blatant misrepresentation since 8th
August, 2011.
(h) The plaintiff has indulged into the said conduct/misconduct
as despite well knowing that in 1979 licenses of shop 128 and
flat and were transferred in his name only by way of mutation
under joint set up and that the statements that the plaintiff
had made under oath as noted above were absolutely false,
was also demonstrated by the document ExhDW1/2 bearing
his signature and he did not admit the same until he was
completely cornered as noted hereinbefore. This may further
bear out the suit of the plaintiff is entirely malicious, based on
complete falsehood and abuse of the process of court, leave
aside having any merit.
(i) During rebuttal arguments on behalf of the plaintiff, reference
was made to the evidence of PW1 (clerk of L& DO department)
to show that it was possible to have the licenses of the above
properties mutated in the name of all the members. The
statement of the PW1 was also not correct because he was not
aware of the relevant notifications about which he was asked
in the cross and he accepted that he was not aware of relevant
notifications. This is because he was not from directorate of
estate department, which was the concerned department
dealing with the licensee properties. The said contention of
the Plaintiff in rebuttal arguments was misleading in view of
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the policies (ExhPW2/8) stated above. The policy restricting
the mutation of a property to one name is correct.
(j) The Income tax returns, which prior to the death of mother,
Smt Vidyawati, in respect of family business of commercial
college, which she was holding for and behalf of the family,
were being filed in her name began to be filed in the name of
Plaintiff on behalf of the family. But for the above changes,
the joint set up continued to subsist.
(k) Thus, after the death of the mother, the business of the
commercial college and tailoring workshop continued to be
run from shop 128 (the suit property because the suit
property had continued to be joint property and the business
of commercial college and tailoring business being run at
shop 99, Ring Road Market, had continued to be joint/family
businesses. This is also the reason that its income tax return
in respect of Commercial college was being filed in his name
and income tax returns in respect of tailoring business
continued to be filed in the name of Sh. O.P Arora and the
position in this respect changed only from 1983 when the oral
division/settlement took place amongst the brothers.
Whereas, after the death of the mother in 1977 and till 1983
the joint set up had continued and it is not Sh. O.P. Arora
alone, as falsely alleged by the plaintiff, but both the elder
brothers i.e. Sh. B.K. Arora and O.P. Arora who continued to
look after the business of commercial college and the tailoring
workshop, as they had been doing prior to the death of the
mother.
(l) ExhPW1/D4 is proved by DW7 and admitted by the plaintiff.
This document is an admission by the plaintiff himself that all
the properties mentioned therein including shop 128 (the suit
property) are ancestral properties that needed to be divided/
distributed and this being the position of the properties in
1983 i.e., joint set up continued up to 1983. The court will
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draw an inference under Section 17 of the Indian Evidence
Act that the question of plaintiff having become owner of the
suit property in 1978 or 1979 because in consequence of his
own admission its becoming evident that in 1978/1979 the
suit property was not his individual property as falsely alleged
by him but it was part of the joint properties.
FINDINGS AND CONCLUSIONS OF THE COURT
The business of commercial college was initially started in the
name of Lala Hansraj Arora and two sons namely Late S/Shri B.K.
Arora and O.P. Arora were helping in the said business. After the
death of Lala Hansraj Arora, business of commercial college was
run in name of the mother of the parties but admittedly, the same
was always managed by Late S/Shri B.K. Arora and O.P. Arora as
the mother of the parties was home maker. After the death of Smt.
Vidyawati, the said business was continued in the name of Shri
M.L. Arora, however, managed and controlled by Late S/Shri B.K.
Arora and O.P. Arora till the year 1983. The business of Arora Tai
lors and Drapers was primarily done by Shri M.L. Arora since 1971,
basically from the premises bearing No.99, Nauroji Nagar, Delhi
which always remained in the name of Shri O.P. Arora.
The income tax returns for the commercial college, after the
death of Lala Hansraj Arora, were filed in the name of Smt.
Vidyawati, however, the same was handled by S/Shri B.K. Arora
and O.P. Arora and after the death of Smt. Vidyawati, the income
returns were filed in the name of Shri M.L. Arora till 1983, however,
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the same was managed and controlled by Late S/Shri B.K. Arora
and O.P. Arora till 1983.
The document dated 29.08.1983 (Exhibit PW1/D4), whereby
the Plaintiff, S/Shri B.K. Arora and O.P. Arora nominated the four
Panchas [who were noneelse but the husbands of their sisters] as
sume much importance in the factual matrix of the present case.
The relevant portion of the said letter is reproduced as under:
"We the undersigned, who are real brothers, by this
writing mutually agree that our movable and immov
able ancestral properties be divided by our 4 brother
inlaws, namely, Sh. B.L. Sethi, Sh. M.L. Monga, Sh.
M.L. Sethi and Sh. Teerath Raj.
The details of the properties are as under:
i) Shop and flat no. 128, Sarojini Market alongwith type
writers etc.
ii) Flat No.110, Sarojini Market.
Iii) 197, Sarojini Market
iv) Shops at Nauroji Nagar, Ring Road, alongwith clothes
and sewing machines.
v) Shop at Prem Nagar.
vi) DDA - MIG Flat - (Booked only).
We further hereby undertake that the decisions given
by these PANCH will be legally and morally legal and
binding and final upon us and we must abide by all
the decisions awarded by the PANCH, in toto."
(Portions bolded in order to highlight)
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The aforesaid document dated 29.08.1983 was denied by the
Plaintiff in his Replication and it is alleged that the said document
is forged, fabricated and manufactured document. Even the signa
ture on the said document was also denied, however, after extensive
cross examination, the plaintiff has admitted the signature on the
said document but submitted that he has signed the said document
without reading the same. The Plaintiff was in the knowledge of the
aforesaid document dated 29.08.1983 (Exhibit PW1/D4) at the
time of filing of Replication, however, he has categorically denied
the signature on the said document and branded the said docu
ment as forged and fabricated. The plaintiff has not given any ex
planation regarding said document at the time of filing of Replica
tion. It is not stated in the Replication that the same was signed
without reading. The explanation, which was given by the Plaintiff
during the crossexamination, has no foundation and the same ap
pears to be evasive in order to wriggleout the contents of the said
document. This Court cannot lost the sight of the fact that it is only
the Plaintiff, who was graduate, out of three brothers and at that
time, even the person having graduate degree assume importance
specifically in the family which is basically business oriented. The
aforesaid document clearly shows that S/Shri B.K. Arora, O.P.
Arora and M.L. Arora (Plaintiff) have mentioned the aforesaid prop
erties as "ancestral properties". This Court is of the considered view
that nomenclature given to aforesaid properties as "ancestral prop
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Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
erties" was misnomer as in common parlance, the joint family prop
erties are also branded and considered as "ancestral properties".
The above document clearly reveals that the Plaintiff himself has
considered the aforesaid properties as joint family properties.
The defendants have also proved on record the letter dated
17.06.1997 (Ex. DW1/2). The defendants have to make lot of effort
to prove the said document. The said document clearly reveals that
the Plaintiff, prior to the mutation in respect of the suit property,
sought the deletion of his name from Shop No.197, Sarojini Nagar
Market, New Delhi. Thus, the said Shop No.197 was not only in the
name of Shri B.K. Arora but also in the name of the Plaintiff. The
Plaintiff, by means of the aforesaid letter, got deleted his name and
reasons are explained by the defendants in the aforesaid argu
ments.
Cumulatively, after considering the entire facts and circum
stances of this case, this Court is completely in agreement with the
aforesaid arguments of Ld. Counsel for the defendants that the
records of this case clearly speak volumes of the fact that there was
joint family of Lala Hansraj Arora and his sons and the aforesaid
properties were always treated as joint family properties by S/Shri
B.K. Arora, O.P. Arora and M.L. Arora (Plaintiff) and mutation in re
spect of the suit property in the records of Directorate of Estates in
favour of the Plaintiff was done due to the facts and circumstances
mentioned in the aforesaid arguments of the defendants and not to
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give exclusiveness in the suit property in favour of the Plaintiff. This
Court is of considered view that this is the classic case of Joint
Family Business and Joint Family properties and the aforesaid
properties, as mentioned in the document Exhibit PW1/D4, were
considered by the brothers as Joint properties of the Family, al
though, recorded in the records in the name of different persons
but they were holding the same in the fiduciary capacity i.e. in the
capacity of trust for self and on behalf of other male members.
ON THE QUESTION (I) WHETHER AWARD DATED 25.09.1983
(Ex.DW1/3), RELEASE/RELINQUISHMENT DEED (Ex.PW
1/D5/Ex.PW1/D21) AND UNDERTAKING (Ex.PW1/D9/DW1/4)
ARE FORGED AND FABRICATED DOCUMENTS, (II) WHETHER
THE ALLEGED PARTITION ARRIVED BETWEEN THE PARTIES
QUA THE PROPERTIES WAS ACCEPTED AND ACTED UPON BY
THE PARTIES, IF SO, (III) WHETHER THE PRINCIPLE OF
ESTOPPEL CAN BE PRESSED INTO SERVICE, (IV) WHETHER
THE AWARD WHICH WAS NOT MADE RULE OF COURT CAN BE
LOOKED INTO FOR THE PURPOSE OF DEFENCE AND (V)
WHETHER AWARD DATED 25.09.1983 (Ex.DW1/3) AND
RELEASE/RELINQUISHMENT DEED (Ex.PW1/D5/Ex.PW
1/D21) REQUIRE COMPULSORY REGISTRATION AND IF SO,
WHETHER THE SAME CAN BE LOOKED INTO FOR
COLLATERAL PURPOSES UNDER SECTION 49 OF THE INDIAN
REGISTERATION ACT
ARGUMENTS OF THE PLAINTIFF
(i) It is claimed by defendants that as per the arbitration
award dated 25.09.1983 the suit property fell to the share
of Mr. O.P.Arora, predecessor in interest of defendants. It is
also claimed that vide the said award, the property No.99,
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Nauroji Nagar, New Delhi was given to the Plaintiff. The
Defendants in respect of their plea that there was an
arbitration award have also produced the reference letter
dated 29.08.1983 (Ex.PW1/D4), Undated Relinquishment
Deed (Ex.PW1/D5 also marked as Ex.PW1/D21), Undated
Undertaking (Ex.PW1/D9). The Plaintiff was confronted
with the arbitration award and the abovementioned
documents in his crossexamination dated 10.09.2007.
(ii) There was no arbitration award passed at any point of time
nor any matter was referred by the Plaintiff and his two
brothers to the arbitration of their four brotherinlaws.
(iii) Even otherwise it an admitted case by the Defendants that
the alleged arbitration award was not registered. Even the
undated relinquishment deed which is filed by the
defendants is not registered and properly stamped. S.17 of
the Indian Registration Act clearly provides the documents
which are compulsory required to be registered and S.49 of
the Indian Registration Act provides that where a
document is required to be registered U/s.17 but is not
registered then the same cannot be received in evidence of
any transaction affecting such property.
(iv) In 1983 the Arbitration Act, 1940 was in force and the
alleged award is governed by the said Act. That as per S.14
of the Arbitration Act, 1940 any award that is passed is not
final unless it is filed in court and made rule of Court. It is
an admitted fact that the alleged award (Ex.DW1/3) has
not been made the Rule of the Court and nor it is
registered.
(v) That even the undated relinquishment deed (Ex.PW1/D5)
is not registered and is not properly stamped. The value of
the suit property is indeed more than Rs.100/and as such
the relinquishment deed is also required to be mandatorily
registered and in the absence of the same it cannot be read
in evidence.
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(vi) The alleged award i.e Ex.DW1/3 which according to the
defendants divides the properties is just on a stamp paper
of Rs.2 as such not adequately stamped. The award dated
25.09.1983 (Ex.DW1/3) and the undated relinquishment
deed (Ex.PW1/D5) are not admissible in evidence for want
of proper stamp and registration.
(vii) It has been held in up teem number of judgments that
where a document is compulsory required to be registered
and is not registered it cannot be taken in evidence. In the
said regard the Plaintiff relies upon the following
judgments:
a. Satish Kumar & Ors. V/s Surinder Kumar & Ors.
(Manu/SC/0264/1968).
In the above mentioned judgment the issue before the
Hon'ble Supreme Court was that, (Para6 of the
Judgment) "The question which arises before us is
whether an award given under the Act on a private
reference requires registration under section 17 (1) (b)
of the Registration Act, if award effects partition of
immovable property exceeding the value of Rs.100."
The facts of the case are in para 3 & 4 of the
judgment, which are that a reference was made to
Arbitration and the arbitrator by the award partitioned
the properties between the parties. The parties signed
the award. The arbitrator filed the award in the court for
making it a rule of the Court. Objections were filed. The
Court did not make the award rule of the Court as it was
not executed on a properly stamped paper, not
registered and hence not admissible in evidence. In
appeal the Additional District Judge upheld the order of
the Subordinate Judge. Thereafter revision was filed
before the High Court and the High also concurred with
findings of the courts below and held that the award
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actually effected partition and required registration
U/s.17(1)(b) of the Indian Registration Act.
The Supreme Court also upheld the order passed by the
High Court and held that the award requires registration
(Para 13, 14, 17 and 19 of the Judgment). In para 22 of
the judgment, Justice Hedge while concurring with the
judgment further held that if the award purport or
operates to create or declare, assign, limit or extinguish
whether in present or future any right, title or interest
whether vested or contingent of the value of one
hundred rupees or upwards to or in immovable
property, if it does it is compulsorily registrable.
The defendants also during the course of
arguments relied upon the above said judgment by
referring to only para 9 of the judgment. It is submitted
that in para 9 of the judgment the Supreme Court has
only referred to an unreported judgment of the Supreme
Court. The judgment in no way espouses the cause of
the Defendants. On facts as well as what has been held
by the Supreme Court in the above said judgment is
contrary to the defence setup by the Defendants.
b. Lachhman Dass V/s Ram Lal & Ors.
(Manu/SC/0281/1989)
In the abovenoted judgment also the Supreme Court
has affirmed that where an award creates, declares,
assign, extinguish and or limit any right title or interest
in the immovable property the same is compulsorily
registrable and in the absence of the same it cannot be
taken into/read in evidence. The facts of the case are in
para 2 of the judgment which in summary are that
parties appointed the arbitrator and the arbitrator
passed the award dividing the properties between the
parties. When the award was filed in court for making it
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a rule of Court objections were filed. The SubJudge
dismissed the objections. On appeal the District Judge
held that award was not properly stamped and could not
be made rule of the Court. The High Court reversed the
order and upheld the award. The Supreme Court in
appeal set aside the order passed by the High Court and
after appreciating the various provisions of the
Arbitration Act, 1940 and the Indian Registration Act
held that an unregistered document effecting the
immovable of the value of Rs.100 cannot be read in
evidence. The relevant para of the Judgment are para 2,
11to 20 & 22.
c. Ramesh Kumar and Ors. V/s Furu Ram & Ors.
(Manu/SC/0952/2011)
The third judgment relied upon by the Plaintiff is a
judgment wherein the Supreme Court besides holding
that the unregistered award, document which is
compulsorily registrable cannot be read into evidence
actually unearthed the fraud committed in obtaining the
award and the modus operandi adopted in perpetuating
the fraud. The Supreme Court in this particular
judgment set aside the award even after it was made the
rule of the Court. In the present also the defendants
have perpetuated the fraud and the documents
produced by them apart from not being admissible in
evidence clearly smack of the conspiracy hatched by the
defendants to grab the property of the Plaintiff.
The entire judgment in whole is relevant however, the
paragraphs which are really crucial are para 2 to 10, 12,
14, 16, 18 last 6 lines of para 28, 30, 31, 34, to 39 & 41.
(viii) The defendants have setup their entire defence on the
ground that there was an arbitration award by which
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partition took place between the parties, however, the
defendants in course of the final arguments gave up this
aspect of their defence. The exact argument put forward by
the counsel for the defendants is that, "this Court may look
the Award dated 25.09.1983 (Ex.DW1/3) as a family
settlement". It is submitted that there was no family
settlement arrived between the parties at any point of time.
An award is a legal mandate but settlement requires
admission. No document signed by the Plaintiff admitting
any family settlement is placed on record by the
defendants. The document Ex.DW1/3 produced by the
defendants clearly stipulates that it is an award and not a
family settlement. The heading of the document itself is
that it is an Award. DW7 namely, Mr. Tirath Raj appeared
and confirmed that he was one of the arbitrators. He
appeared at the instance of the defendants testifying that
he along with other brotherinlaws of the Plaintiff and Late
O.P.Arora had passed the award dated 25.09.1983. It is the
specific case of the defendants that vide reference letter
dated 29.08.1983(Ex.PW1/D4) the dispute was referred to
the arbitration of the four brotherinlaws.
(ix) Sections 91 & 92 of the Indian Evidence Act, stipulate that
where the terms of a contract, or grant or disposition of the
property has been reduced into the form of a document, no
evidence shall be given in proof of the terms of the
contract, disposition of the property except the document
itself. No oral evidence is permissible in such a scenario.
S.91 & 92 of the Indian Evidence Act, debars the
defendants from giving any other interpretation to
Ex.DW1/3 i.e the award.
(x) The defendants have given up this aspect of their defence,
the entire theory of the defendants that they are the owners
of the suit property falls flat. The defendants who have
been asserting that they have a better title to the suit
property than that of the Plaintiff have miserably failed to
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prove their case. No title of any nature in respect of the suit
property vests in the defendants.
(xi) Even if for the sake of arguments it is taken that there was
a family settlement between the three brother's i.e Sh.
B.K.Arora, Sh. O.P.Arora and the Plaintiff i.e Sh. M.L.Arora
and it was reduced into writing in the form of Ex.DW1/3
then also as per the provisions of S.17 of the Indian
Registration Act, the said settlement is required to be
registered as it creates and extinguishes rights in
immovable property of the value of Rs.100. Further if there
was a family settlement then why the 5 sisters were not
part of the same.
(xii) The defendants claim that they have become the sole and
absolute owners of the suit property by way Ex.DW1/3.
The entire argument of the defendants of family settlement
is against their written statement and evidence led by
them. The defendants while harping on the argument of
family settlement have relied upon various judgments. It is
respectfully submitted that all the judgments relied by the
defendants do not support their case. All the judgments
relied upon by the defendants are distinguishable on facts
as well as law. The judgments relied by the defendants are
dealt herein below:
(a) Kashinathsa Yamosa Kabadi etc. V/s. Narsingsa
Bhaskarsa Kabadi etc. (AIR 1961 SC 1077). In this
case the questions that fell for consideration before the
Supreme Court were
(i) Whether defendant No.3 is entitled to a half share
in all the properties of the joint family ignoring the
division already made.
(ii) Whether the unaccounted cash which was estim
ated by defendant No.3 and the Plaintiffs at
Rs.4,00,000/ and which was stated by defendant
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No.1 to be Rs.3,20,000/ was divided on
19.10.1946.
The issues that fell for consideration before the
Supreme Court in the abovementioned case are in
no way connected with the present case. However,
the Supreme Court in para 21 of the judgment has
observed that Since the enactment of
the Arbitration Act, 1940,, there has & risen wide
divergence of judicial opinion among the High
Courts on the question whether an award made in
a reference out of court can be set up as a defence
to an action filed by a party thereof on, the original
cause of action when the award is not filed in
court. The Supreme Court held that, "It is not
necessary in this appeal to express a considered
opinion on this disputed question."
The Supreme court in para 23 of the judgment
held that, " The records made by the Panchas
about the division of the properties, it is true, were
not stamped nor were they registered. It is however
clear that if the record made by the Panchas in so
far as it deals with immoveable properties is
regarded as a nontestamentary instrument
purporting or operating to create, declare, assign,
limit or extinguish any right, title or interest in
immoveable property, it was compulsorily
registrable under S.17 of the Registration Act, and
would not in the absence of registration be
admissible in evidence.
(b) Tek Bahadur Bhujil V/s Debi Singh Bhujil & Ors. (AIR
1966 SC 292). This judgment is with regard to the
family settlement. In the case in hand the issue is not of
family settlement but of arbitration award. Citing of the
judgments by the defendants contrary to their pleadings
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is of no substance. The Supreme Court in
abovementioned judgment dealt with the issue that
whether family settlement requires registration and in
para 12 of the judgment held that, "Family arrangement
as such can be arrived at orally. Its terms may be
recorded in writing as a memorandum of what had been
agreed upon between the parties. The memorandum
need not be prepared for the purpose of being used as a
document on which future title of the parties be
founded. It is usually prepared as a record of what had
been agreed upon so that there be no hazy notions
about it in future. It is only when the parties reduce the
family arrangement in writing with the purpose of using
that writing as proof of what they had arranged and,
where the arrangement is brought about by the
document as such, that the document would require
registration as it is then that it would be a document of
title declaring for future what rights in what properties
the parties possess. In view of what has been held by the
Supreme Court in the abovementioned judgment a
family settlement requires registration if it creates and
extinguishes rights in properties. In the present case
also the defendants are alleging that on the basis of the
Ex.DW1/3 independent right in the suit property was
created in their favour and they have become the
absolute owners thereof. In light of what has been
observed by the Supreme Court in the abovementioned
judgment the document Ex.DW1/3 requires registration
and in the absence of the same it cannot be read in
evidence. The judgment cited by the defendants goes
against them.
(c) Ram Charan Das V/s Girjanandini Devi & Ors. (1965) 3
SCR 841. This judgment is also based upon family
settlement and is not relevant in the facts and
circumstances of the present case. The facts of the case
are clearly distinguishable from the facts of the case in
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hand. The defendants are deliberately trying to confuse
the issue. When the case of the defendants is that
arbitration award was passed and partition took place
between the parties there is no relevance of referring
judgments pertaining to family settlement.
(d) Sk. Sattar Sk. Mohd. Choudhari V/s Gundappa
Amabadas Bukate (1996) 6 SCC 373. This judgment
pertains to the eviction proceedings under Section 15 of
the Hyderabad Houses (Rent Eviction and lease Control)
Act, 1954. The matter pertains to landlord and tenant
and there is no resemblance with the facts of the
present case. However, the Supreme Court in para 27 of
the judgment has held that, Partition, specially among
the coparceners, would be a "Transfer" for purposes
of Registration Act or not has been considered in Nani
Bai vs. Gita Bai Kom Rama Gunge (AIR 1958 SC
706) and it has been held that though a partition may
be effected orally, if the parties reduce the transaction to
a formal document which was intended to be evidence of
partition, it would have the effect of declaring the
exclusive title of the coparcener to whom a particular
property was allotted (by partition) and thus the
document would fall within the mischief of Section
17 (1) (b) of the Registration Act under which the
document is compulsorily registerable. The above said
observations of the Supreme Court goes completely
against the defendants as the defendants are claiming
that vide Ex.DW1/3 partition took place and they
became the absolute owners of the suit property and as
such the said document required registration.
Defendants claim that they are in possession of the suit
property as owners and in that eventuality Ex.DW1/3
looked from any angle is not to be read in evidence.
(e) Delhi Diocesan Trust Association V/s Javed Malik &
Ors. (Delhi High Court). The abovementioned
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judgment is respect of a suit filed by the party against
the tenant and also for subletting. The suit was
dismissed and even the appeal was dismissed as both
the courts came to the finding that rent was less than
Rs.3500/ and came under the purview of Delhi Rent
Control Act and the suit was not maintainable. This
judgment relied upon by the defendants in the present
has no relevance at all with the case in hand. The
judgment is distinguishable on every count.
(f) Thulasidhara V/s. Narayanappa
(Manu/SC/0669/2019). This judgment relied upon the
defendants is again with respect to family settlement.
The judgment is not applicable in the facts of the
present case as there is no family settlement. No case
has been built up by the defendants that there was any
family settlement. The defendants have loosely argued
and submitted in the course of arguments that
arbitration award dated 25.09.1983(Ex.DW1/3) be
looked as a family settlement but have not put forward
any argument that why it should be looked as family
settlement when the whole defence set up by the
defendants is of arbitration award. Further on the basis
of this judgment the defendants have tried to put
forward the issue of estoppel. In the said regard it is
submitted that when there was no family settlement
between the parties there is no question of estoppel. In
fact in the light of the defence raised by the defendants,
it is the defendants who are estopped to allege anything
contrary to their defence.
(g) Kale & Ors. V/s. Deputy Director of Consolidation and
Ors. (Manu/SC/0529/1976. This judgment is again in
respect of family settlement which is not the case in the
case in hand. The facts of the case are not in
consonance on any parameter with the present case.
The Supreme Court in the abovementioned judgment
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has only dealt with the issue of family settlement and
has held in para 10 of the judgment that, "It is well
settled that registration would be necessary only if terms
of the family arrangement are reduced into writing," The
judgment relied upon by the defendants does not help
them inspite of changing their stand because the
defendants on the basis of Ex.DW1/3 i,e arbitration
award dated 25.09.1983 claim that partition took place
and they became absolute owners of the suit property.
According to the law laid down by the Supreme Court in
the aforementioned judgment family settlement creating
exclusive rights in the property and reduced in writing
are compulsorily registrable.
The reliance placed by the defendants on a number of
judgments pertaining to family settlement infact does
not help their case rather the defendants by departing
from their defence of arbitration award have made the
case of no defence by the defendants.
(xiii) With regard to the various judgments relied upon by the
defendants which are in no manner applicable to the case
in hand the Plaintiff would rely on the judgment titled
Municipal Corporation of Delhi vs Gurnam Kaur (AIR 1989
SC 38) where in it has been held by the Supreme Court
that, "Quotability as 'law' applies to the principle of a case,
its ratio decidendi. The only thing in a Judge's decision
binding as an authority upon a subsequent Judge is the
principle upon which the case was decided. Statements
which are not part of the ratio decidendi are distinguished
as obiter dicta and are not authoritative."
(xiv) The Plaintiff is relying upon the judgment of Jagdish
Kumar Sachdeva V/s Subhash Chander Sachdeva
(Manu/DE/2161/2011). In para 13 & 14 of the judgment
the High Court of Delhi relying upon the judgment of Kale
& Ors V/s Deputy Director of Consolidation and Ors. and
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the judgment of Bhoop Singh V/s. Ram Singh (AIR 1996 Sc
196) held that if a document effects partition, transfer,
creates, extinguishes rights in immovable property then the
same is compulsorily registrable.
(xv) That on the basis of the defence taken by defendants issue
no.1 was framed as,"Whether the Plaintiff has no right, title
or interest in the suit property? OPD" and similarly issue
no.2 was framed as, "Whether the defendants are owners of
the suit property? OPD".
(xvi) The framing of the issue no.1 & 2 clearly demonstrate that
the defendants in their defence have asserted that they are
the owners of the suit property to the exclusion of the
Plaintiff. The basis of the said defence taken by the
defendants is the arbitration award dated 25.09.1983
(Ex.DW1/3). Burden of proving the same was upon the
defendants. The said award as stated in the preceding
paras hereinabove is not made the rule of the Court nor the
same is registered and the same is insufficiently stamped.
The same cannot be read in evidence. Hence there is no
legally admissible evidence on record which could enable
the defendants to discharge their burden of proving the
ownership as regards the suit property. Since the
defendants have failed to make out any case of title to the
suit property the defendants are not entitled to any relief of
injunction also. The issue no.1 & 2 as framed clearly show
that vide Ex.DW1/3 the defendants claim exclusive title to
the suit property and so even if the defendants state that
Ex.DW1/3 i.e the arbitration award be looked as a family
settlement still the same requires registration because as
per the defendants they have become absolute owners on
the basis of Ex.DW1/3. However the defendants have not
pleaded any case of family settlement in their pleadings. No
details of any such family settlement have been pleaded in
their written statement.
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(xvii) Even the said plea of family settlement does not help the
case of the defendants. The defendants have failed to prove
and lead any evidence that they are the owners of the suit
property. The defendants have also failed to prove that the
Plaintiff has no right, title or interest in the suit property.
The defendants have admitted the title documents of the
Plaintiff in respect of the suit property and have also
admitted in their crossexamination that they have never
initiated any legal proceedings to challenge the legality of
the title deeds in favour of the Plaintiff.
(xviii) The defendants in their defence examined DW7 namely,
Mr. Tirath Raj Arora. The said DW7 is one of the
Arbitrators and he in his affidavit of Evidence in para4 has
stated that Ex.DW1/3 is the award passed by him and the
other brotherinlaws of the parties. The said witness in the
same paragraph has also stated that the Award dated
25.09.1983 bears his signatures and the signatures of the
other arbitrators.
(xix) DW7 in para 10 of his affidavit of evidence has stated that,
"As after the distribution of the properties and businesses
as aforesaid, the same were duly held and enjoyed by the
three brothers as their individual properties as their
respective owners thereof.........." The said statement of
DW7 if considered in the light of the argument of family
settlement as advanced by the defendants then also
Ex.DW1/3 required registration as per S.17 of the
Registration Act, and in the absence of the same cannot be
read in evidence. However according to the defendants i.e
what has been pleaded by them, evidence led, documents
produced and the evidence & crossexamination of DW7,
the Ex.DW1/3 is claimed to be an award.
(xx) The crossexamination of DW7 proves that there was a
conspiracy hatched by Sh.O.P.Arora and the other
accomplice i.e the brotherinlaws and the elder brother of
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
the Plaintiff namely, Mr.B.K.Arora to grab the property of
the Plaintiff. DW7 appeared at the instance of the
defendants. The entire crossexamination of DW7 proves
that the gambit of arbitration and the award being passed
and the division of the properties by the award is just a
ploy and an afterthought attempt by the defendants to put
forward a false & sham defence.
(xxi) The original award dated 25.09.1983 has not been placed
on record by the defendants. As per the list of documents
filed by the defendants, the defendants have placed on
record the carbon copy of the award. DW7 was confronted
with Ex.DW1/3 i.e the award dt.25.09.1983 and he in his
crossexamination dated 16.04.2015 stated that,
"Ex.DW1/3 is the original award. It is correct that
Ex.DW1/3 appears to be a carbon copy. I do not remember
as to how many original awards were made." The said
witness who is one of the arbitrators has further in his
crossexamination sated that, I do not remember whether
myself or any brotherinlaw retained a duly signed copy of
the award with them. However, myself have not retained
any copy. From the crossexamination of DW7 it is proved
that the arbitrators without considering anything
proceeded to pass the award. DW7 in his cross
examination date 21/04.2014 has admitted that no papers
of any property were looked by them. DW7 further in his
crossexamination stated that, "It is correct that all the
sisters/daughters of Hans Raj Arora and Sh. Dhan Raj
were not parties in the so called family arrangement
proceedings/Arbitration proceedings."
(xxii) The entire crossexamination of DW7 proves that the
Plaintiff is the victim of the greed of deceased O.P.Arora
and thereafter his legal heirs i.e the defendants in the
present suit. It is admitted by DW7 in his cross
examination dated 12.01.2015 that he has not seen any
document to show that the respective business conducted
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by the three brothers were joint. It is also admitted by DW
7 in his cross that it is correct that no letter in writing was
written by Sh.O.P.Arora to Sh. M.L.Arora asking him to
facilitate by executing necessary documents/papers to get
the shop no.128, Sarojini Nagar Market to his name. From
the crossexamination of DW7 it is proved that no
arbitration proceedings were held by them. No minutes of
arbitration proceedings were drawn into writing. DW7 in
his crossexamination dated 12.01.2015 stated that, "I
cannot tell exactly what was the dispute.". The Arbitrators
by the award dated 25.09.1983 (Ex.DW1/3) proceeded to
pass an award whereby the arbitrators passed an award for
the partition/division of the licence properties. It is
submitted that licence properties cannot be subjected to
partition because it is the particular licence holder who is
entitled to the same and it is not transferable, either
voluntarily and/or by way of the alleged award.
(xxiii) The fact that properties on licence basis cannot be
transferred to a third party is in fact proved by the
defendants themselves. It is the case of the defendants that
property bearing no.99, Nauroji Nagar, New Delhi was
given to the Plaintiff under the award and the same was a
licence property and till date continues to be a licence
property. It is also an admitted case that Sh. O.P.Arora was
the licensee of the said property. Sh. O.P.Arora died in the
year 1998 and after his demise defendant no. 1 in the year
1999 applied to Directorate of Estate for
transferring/regularizing the platform no.99 in her favour
being the legal heir of Late O.P.Arora. The defendant No.2
& 3 for the said purpose gave No Objection to defendant
No.1. Letter dated 02.07.1999 written by defendant no.1 to
Directorate of Estate is Ex.PW2/9. No Objection given by
defendant no.1,2 & 3 are Ex.PW2/10, Ex.PW2/11 and
Ex.PW2/12. DW2 in his evidence dated 02.02.2005 stated
that, "According to the rules of our department the
property allotted on licence basis cannot be sold or
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transferred by the allottee in favour of any third person."
PW2 i.e the Officer from the Directorate of Estate appeared
and placed on record all the documents filed by the
defendants for getting the platform no.99 transferred in
their name. Further from the evidence of PW2 it is proved
that the Department had cancelled the licence of platform
no.99 after the death of Sh.O.P.Arora and thereafter the
defendants have got it transferred in their name. DW1 has
admitted in his crossexamination that Plaintiff was not
informed by them in the said regard.
(xxiv) On the one hand, the defendants claim that vide
Ex.DW1/3 the properties were divided between the
brothers in 1983 and on the other hand the defendants in
the year 1999 apply for transferring & regularizing the
platform no.99 in their favour. The said conduct of the
defendants proves that there was no partition in the year
1983 and no award was passed. There is nothing on record
to show by the defendants that if award was passed in the
year 1983 why they applied for transfer of the platform in
their favour. DW1 in his crossexamination has admitted
that Plaintiff at no point of time was informed about the
steps being taken by them for getting the platform no.99
transferred in their name. The defendants claim that award
dated 25.09.1983 was acted upon. The said contention of
the defendants is completely false and contrary to what has
been placed on record. After 1983 the first official act that
takes place and confirms that Plaintiff is the owner of the
suit property is the execution of the lease deed and the
conveyance deed of the suit property in favour of the
Plaintiff in April,1984, had the award been passed Late
O.P. Arora who was alive then would not have let the lease
deed and the conveyance deed be registered in the name of
the Plaintiff. It relevant to mention that it is claimed by the
defendants that eldest brother of the parties i.e
Mr.B.K.Arora was also aware of the award and had got
properties under the award. The said Mr.B.K.Arora is an
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
attesting witness to the lease deed and the conveyance
deed of the suit property registered in favour of the
Plaintiff.
(xxv) The defendants also attempted to claim that the suit
property is ancestral property. The said contention of the
defendants is completely baseless. From the admitted facts
of the case as stated in para 2 of the present written
submissions it proved that how the property devolved upon
the Plaintiff. Late Hans Raj Arora was allotted the property
bearing no.128, Sarojini Nagar Market, New Delhi and
upon his death all the legal heirs gave no objection in
favour of their mother namely, Smt.Vidya wati and after
her demise all the legal heirs gave no objection for
transferring the property to the Plaintiff. In 1978 when all
the brothers and sisters gave their no objection thereafter
they were left with no right in the suit property. Till date no
other legal heir of late Hans Raj and Late Vidya wati had
made any claim on the suit property apart from the
defendants. The suit property is also not a joint Hindu
family property because it was not purchased from any
joint funds. The property from 1951 to 1983 was a license
property and it was only in the year 1984 that lease deed
and conveyance deed were executed in favour of the
plaintiff. Another aspect that is relevant is that the
defendants claim that as per the oral directions of the
arbitrators the two brother namely, Sh.B.K.Arora and
Sh.O.P.Arora gave Rs.40,000/ each to the Plaintiff in the
year 1983. In the year 1983 Rs.40,000/ was a big amount.
The Income Tax Returns of Late O.P.Arora of the relevant
period placed on record do not reflect any such amount.
There is no proof of the said amount being paid to the
Plaintiff. Nothing has been placed on record in the said
regard.
ARGUMENTS OF THE DEFENDANTS
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
1) The Joint Family as also the Joint business arrangement and
Joint properties continued till April 1983, when the brothers
orally divided/partitioned the same among themselves as un
der:
a. Shop no.197 (Coal Depot), Sarojini Nagar Market, New
Delhi and Flat no.110, Sarojini Nagar allotted to the eldest
brother Sh. B.K. Arora, who became absolute owner of the
same to the exclusion of others.
b. Shop no.128, Sarojini Market, New Delhi (suit property)
along with typewriters was allotted to Sh. O.P. Arora, the
predecessorininterest of the defendants, who became ab
solute owner of the same to the exclusion of others.
c. Flat no.128, Sarojini Nagar Market; Shop 99 at Nauroji
Nagar, Ring Road, Shop at Prem Nagar and DDA MIG flat
booking, were allotted to Sh. M. L. Arora (plaintiff herein),
who became absolute owner of the same to the exclusion
of others.
But despite that it was considered appropriate by three broth
ers to put into writing the same by seeking the help of their
four brothersinlaw to avoid any misunderstanding in future
and to sort out minor differences that generally remain when
settlements are made. Thus, the three brothers requested the
four brothersinlaw Shri B.L. Sethi, Shri M.L. Monga, Shri
M.L. Sethi and Shri Teerath Raj in this division process, vide a
joint letter dated 29th August, 1983 (ExhPW1/D4) to provide
the help as Panch. It has been deposed by one of the brother
inlaw's (DW7) that the brothers had informed them that they
have already arrived at a decision and that during discussions
also the three brothers on their own arrived at a settlement
orally among themselves and informed the brothersinlaw of
the same, the terms of which were then incorporated by the
four (4) brothersinlaw in the form of a document dated 25th
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
September, 1983 titled as "award" (ExhDW1/3), which was a
family settlement/division recording the oral settlement
among the brothers, using the terminology deemed best at
that time by all of them.
2) Besides above, if in future either the plaintiff or Sh. O.P. Arora
decide to sell the property of his share, the other brother
would have preemptive right in regard to the same; how the
cost of construction would be shared between the two broth
ers in respect of construction that was capable of being done
in the back courtyard in future; how the three brothers would
look after Sh. Dhan Raj after the above division/settlement
since prior thereto all his needs were being looked after in
joint set up and did not require such specification/definition
but in the said settlement the 3 brothers agreed to contribute
every month Rs.350/ each as his living expenses and
recorded this fact in this document and since the properties
had still been on license basis, though in respect of shop 128
and flat 128 the process of conversion into leasehold had
started in 1979, yet it was in pipeline and was not disturbed
and it was also incorporated that the plaintiff and Sh. O.P.
Arora would extend the necessary cooperation and would exe
cute necessary documents of transfer in the manner felt nec
essary for bringing the suit property and shop 99 respectively
in the name of each other in the concerned departments be
cause in respect of other properties, no such change was re
quired/involved because they already stood in the name of the
respective brothers to whose shares they had fallen in conse
quence of the said settlement/division.
3) Since the tailoring workshop operating in the back courtyard
of the suit property had to move out, the suit property having
fallen to the share of Sh. O.P. Arora, Sh. B.K. Arora and Sh.
O.P. Arora agreed to pay Rs.40,000/ each to Sh. M L Arora
(plaintiff herein) for compensating him for arranging tailoring
workshop elsewhere as recorded in a separate document titled
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"undertaking" in pursuance of the Award was executed and
signed by Sh. B.K. Arora and Sh. O.P. Arora and confirmed by
the plaintiff and duly witnessed by the four brothersinlaw,
which is on record and duly proved as ExhDW1/4. Signifi
cantly the Stamp Paper for this document was purchased by
the Plaintiff himself as reflected on the reverse thereof.
4) The said oral division/family settlement was duly acted upon
by the 3 brothers, is also clear from the following facts and ev
idence:
a. Deed of Relinquishment was executed by the plaintiff (Exh
PW1/D21). The plaintiff has admitted his signatures on
the said Deed of Relinquishment. DW7, Sh. Tirath Raj
(Brotherinlaw/Panch), has also proved this document.
Significantly the Stamp Paper for this document was pur
chased by the Plaintiff himself as reflected on the reverse
thereof.
b. Original documents of title of the suit property i.e. original
lease deed and conveyance deed were handed over to Sh.
O.P.Arora by the plaintiff after the same were executed and
received from the department. These originals are still with
the defendants. The respective documents pertaining to
other properties were handed over/retained by the brother
to whom a particular property had been allotted. The above
facts have been also proved by DW7 in para 9 of his affi
davit of evidence deposed as under
"That the respective documents pertaining to the
properties belonging to three brothers as per listing
as stated above were also given/taken respectively by
the three brothers, namely Sh. B.K. Arora, Sh. O.P.
Arora and Sh. M.L. Arora in confirmation and
furtherance of the above said distribution".
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There is no contest to this deposition of DW7 as well as
Para 11 of his Affidavit in Evidence, which further
establishes the truthfulness of the testimony of DW7 and of
the position narrated above.
c. The tailoring workshop in the back portion of the suit prop
erty was moved from there so that Sh. O.P. Arora in whose
share the suit property had fallen could begin to enjoy it
fully and Sh. B.K. Arora and Sh. O.P. Arora paid
Rs.40,000/ each to the plaintiff for this purpose as men
tioned in ExhDW1/4. The factum of the payment of Rs.
80,000/ by the elder brothers to plaintiff has also been
proved by the testimonies of DW7 & DW10. Crossexami
nation of DW7 Sh. Teerath Raj Arora dated 21.10.2014 is
as under:
"It was paid in my presence on the festival of Diwali on
which occasion they also celebrate Bhai Duj in the year
1983 at Flat no.110, Sarojini Nagar Market. The money
was cash in envelope but I do not know how much was
there in the envelope.......".
d. During the course of rebuttal arguments, to impeach credit
of DW7, it had been contended on behalf of the plaintiff
that since the payment was made in an envelope, Sh.
Tirath Raj, DW7, could not have known the amount con
tained therein. In this regard, it is submitted that it is not
the case of the plaintiff that there was any deficiency in the
amount paid which by itself establishes that the amount
paid in the envelope was as per the undertaking given by
brothers.
e. All the 3 brothers started dealing with the properties that
fell to their respective share as the sole and exclusive own
ers thereof. Vide Lease Deed dated 17th November, 1983
(ExhPW1/D10) Sh. O.P.Arora leased out the suit property
to Punjab National Bank (PNB) for a period of 3 years + 3
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years for a monthly rent of Rs.6,000/ in his own right as
owner thereof, this lease deed is witnessed by Plaintiff.
Likewise, the plaintiff leased out Flat no.128, Sarojini Na
gar Market, New Delhi to Punjab National Bank (PNB) for a
period of 3 years + 3 years in his own right as owner
thereof vide Lease Deed dated 17th November, 1983 at
monthly rent of Rs.3,500/. The lease deed executed by Sh.
O.P. Arora was witnessed by the plaintiff.
f. After the settlement/division in 1983 Sh. O.P.Arora started
filing Income Tax Return of the business of commercial col
lege as his personal income, which earlier was being filed
in the name of Plaintiff when the business was in joint
setup and with effect from 05.11.1983 also started showing
rental income from PNB in respect of suit property as his
income. Income tax return for the Financial Year 198384
evidencing this fact is ExhDW1/18. This fact has been
also admitted by the plaintiff in his crossexamination held
on 19th November, 2007 wherein he has stated as under:
"It is correct that I never disclosed rental income in re
spect of ground floor in my income tax returns as my in
come at any point of time. It is correct that the rental
income in respect of ground floor received from Punjab
National Bank was always shown by Sh. O.P. Arora in
his income tax returns as his income."
g. The lease deeds with PNB were renewed by Sh. O.P. Arora
for different periods and lastly vide Lease Deed dated 15th
November, 1991 (ExhPW1/D12) and the rent received was
appropriated by him, showing the same as his personal in
come in his Income Tax returns. Likewise, the plaintiff
leased out Flat no.128, Sarojini Nagar Market, New Delhi to
Punjab National Bank (PNB) for a period of 3 years + 3
years in his own right and lastly vide Lease Deed dated
15th November, 1991 (ExhPW1/D22). These lease deeds
executed by the plaintiff were witnessed by Sh. O.P.Arora).
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h. The correspondence written by Sh. O.P. Arora and Sh.
M.L.Arora with PNB mentioned them as owners for their re
spective premises. This correspondence is ExhPW1/D11,
PW1/D13, PW1/D14, PW1/D15, PW1/D16, PW1/D17,
PW1/D18, PW1/D19.
i. On the expiry of the lease, when PNB did not vacate the
suit property and Flat no.128, Sarojini Nagar Market, New
Delhi, both brothers filed separate suits for possession and
recovery against PNB, Sh. O.P. Arora filing the Suit with re
spect to the Suit Property specifically pleading to be its
owner and the plaintiff filed with respect to the flat inter
alia pleading to be its owner. The plaint of the suit filed by
Sh. O.P. Arora for the suit property is ExhDW1/11 and
plaint of the suit filed by the plaintiff is ExhPW1/D24.
j. The plaintiff having got Shop no.99 in division, started
showing the family tailoring business being earlier shown
by the family in the name of Sh. O. P.Arora, as his personal
business from the Financial Year 198384 and started fil
ing income tax returns in his personal name. This fact has
been admitted by the plaintiff in his crossexamination
recorded on 20th March, 2007, wherein he has deposed as
under when the question was put to him in this regard.
"Q: Did you ever file income tax returns of M/s. Arora
Tailors and Drapers?" to which the plaintiff replied,
A: "I had filed the returns for the years 1984
onwards".
Reference may also be made to the computation of income
of the Plaintiff ExhPW1/D3 which also proves the
settlement had taken place and further falsifies his
allegations.
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5) Initially, the plaintiff in replication and his affidavit in evi
dence, alleged that the aforesaid documents relating to the
said Settlement/Division/Award, Exh PW1/D4, DW1/3,
DW1/4 and PW1/D21 were false, forged and fabricated docu
ments and that he had not signed them, but subsequently in
his crossexamination, the plaintiff admitted his signatures on
ExhPW1/D4, DW1/4 and PW1/D21, the effect of which is
that he has admitted the execution thereof. In his crossexam
ination dated 07.09.2007 and 22.04.2010 the plaintiff's state
ments of admission are to the following effect, not explaining
why he had put his signatures on these documents. Crossex
amination of PW1 Sh. M.L. Arora dated 10.09.2007 is as un
der:
"The signatures appear at Item no.3 on document Ext.
PW1/D4 are similar to my signatures............ When I
signed at Ext. PW1/D4, I did not read the same nor I
saw the same................... Signatures appearing at
PW1/D5 on relinquishment deed are similar to my
signatures................ The signatures appearing at
point PW1/D6, Ext. PW1/D7 and at PW1/D8 are
similar to my signatures................ Signatures
appearing at Ext. PW1/D9 on undertaking are
similar to those of my signatures. I did not read the
contents of the document relinquishment deed before
I signed at point PW1/D5 and so is my reply with
regard to the undertaking which bears my signatures
at point PW1/D9 which I also appended without
reading the contents of this undertaking...................
I am a graduate......... I signed at Ext. PW1/D4 and
PW1/D9 without reading and understanding the
contents of these documents".
6) Crossexamination of PW1 Sh. M.L. Arora dated
22/04/2010:
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"My reply to the signatures Ex. PW1/D5 is also the
same in respect of my signatures Ex. PW1/D6 to Ex.
PW1/D8 to the effect that I did not read the contents
of the relinquishment deed and that without reading
the same, I signed this document at different places.
It is wrong to suggest that I put my signatures on
relinquishment deed at Ex. PW1/D5 to Ex. PW1/D8
after having read this document and also having
understood the contents thereof."
7) It is submitted that even otherwise, the fact that the said Divi
sion/settlement, had taken place and had been accepted and
acted upon, has been duly proved in evidence, both the docu
ments (ExhPW1/D4, ExhDW1/3, ExhDW1/4 and Exh
PW1/D21) and the oral evidence of the plaintiff to the con
trary has no value in the eyes of law because the plaintiff nei
ther disclosed about the said documents nor challenged the
same including the said Division/Partition/Award, in any ap
propriate proceedings.
8) The said DW 7 Tirath Raj was aged 73 years at the time of his
deposition, a responsible person, who has no interest in the
suit property and enjoys same relation with the plaintiff as he
enjoyed with his elder brothers and has come before the
Hon'ble court only for bona fide reason so that he could tell
the truth, which he knows having personal knowledge be
cause of his involvement in the matter. Similarly, DW 10, Ra
jiv Arora is the son of the eldest brother, Sh. B.K. Arora (since
deceased), came from Canada, only for the aforesaid purpose
because he also knows the truth because of his father having
received his share of properties in the above division and
knows the relevant facts being part of the family as son of the
eldest brother. Thus, these documents are genuine docu
ments, duly proved as per law and liable to be read into evi
dence. Even otherwise there is no truth in the allegations of
the plaintiff that he signed these documents without reading
and the said contention of the plaintiff is otherwise also be
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yond pleadings. Besides, he is an educated person, a graduate
and admittedly, more educated than other two brothers and
these facts may further cogently bring out that each of the al
legations of the plaintiff about these documents are absolutely
false and completely untenable particularly when he has not
led any evidence much less a satisfactory one.
9) PW1/D21 is the Relinquishment Deed that has been executed
by Sh. M.L. Arora, the plaintiff in favour of Sh. O.P. Arora, in
respect of the Shop 128 (suit property), in pursuance of the
above division which further bears out the authenticity of the
oral family division recorded in ExhDW1/3. The fact that li
cense does not amount to an interest in a property since the
status of the suit property at that time was of a licensee which
was not a registerable interest and hence did not require reg
istration, hence the objection raised by the plaintiff that it is
not admissible in evidence being not registered has no merit.
Without prejudice, it is submitted that if for the sake of argu
ment be it taken that it required registration and is not regis
tered, still it can be seen/looked into to see the nature and
character of the possession of the defendants. Reliance is
placed on Bondar Singh Vs Nihal Singh (2003) 4 SCC 161
para 5. Significantly, there is also mention in this document
that it is made in pursuance of the above document titled as
Award (ExhDW1/3) and further bears out that allegations
and the suit of the plaintiff are false and untenable.
10) The judgment of the Hon'ble supreme court in Bonder Singh
vs Nihal Singh which deals with the effect of unregistered sale
deed and the lapse of 12 years thereafter and that of the
Hon'ble Madras High Court that points out the effect of unreg
istered gift deed duly bear out the position as aforesaid, even
if it is taken that the relinquishment deed in the given case re
quired registration but it has not been registered. It was con
tended on behalf of the plaintiff that it is liable to be con
strued as Conveyance, assuming though not accepting it as
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correct because one's getting his share in joint properties does
not constitute transfer of interest as such but recognition of
the already existing interest, such construction will not
change its evidentiary value in the context of issue in hand
and would only bear out as aforesaid and rather in such case
it will be directly covered by the judgment in Bonder Singh vs
Nihal Singh (Para 5, SC 2003).
11) The plaintiff has taken an objection that the documents relied
upon by the defendants i.e. Award dated 25th September,
1983/Family Deed (ExhDW1/3) and Relinquishment Deed
(ExhPW1/D21) were neither properly stamped nor regis
tered, According to the plaintiff, these documents needed to
be registered, and not being registered, cannot be received in
evidence.
12) ExhDW1/3 is only a family settlement although titled
"Award" and merely records division/partition of properties
orally effected by the brothers and therefore did not require
registration and can be read in evidence. As proved in evi
dence, Ex DW1/3 merely records the terms of the oral settle
ment of division between the brothers. The nomenclature of a
document is not decisive is settled law. The bar of Sections 91
and 92 of law of evidence is with respect to the terms of the
document that cannot be changed but extrinsic evidence can
be seen to determine the true character of the document. It
may be seen that the allocation of the properties mentioned in
this document is in perfect harmony with that has been given
effect to among brothers w.e.f 01.04.1983 and the considera
tion of this evidence is not leading to change in the terms but
enabling appreciating the true character of the document,
which is not barred. Intrinsically, this document is nothing
but memorandum of record of the partition that had been
orally done amongst the brothers and therefore, it does not re
quire any registration and can accordingly be considered into
evidence. Without, prejudice to the foregoing, even otherwise,
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since the partition has been accepted and acted upon and the
plaintiff is a beneficiary himself thereunder, he is otherwise is
also precluded from resiling from the same by virtue of the
doctrine of estoppel and pleading lack of registration and that
is why plaintiff has taken to claim the suit property by fabri
cating and stating lies only.
13) ExhDW1/3 is covered by Section 17(2) (v) of the Registration
Act and did not require registration, as it only lists out the
properties as agreed to have fallen to the respective shares of
the three brothers and required taking of further steps i.e. ex
ecution of necessary documents, by Sh. O. P. Arora to get
shop no. 99, Ring road, Nauroji Nagar transferred in the name
of the plaintiff and by the plaintiff to get Shop 128, Sarojini
Market transferred in the name of O.P.Arora, in the manner
felt necessary, which is also mentioned in ExhDW1/3, even
otherwise the nature of interest at that stage in the said prop
erties was of a license only under the Directorate Of Estates.
It is submitted that it is only at the subsequent stage of exe
cution of said further documents that Section 17(1)(b) of the
Registration Act contemplates registration.
14) Without prejudice to the submission above, ExhDW1/3 being
a family settlement, even without registration it can be used
as corroborative evidence for collateral purpose, explaining
the arrangement made thereunder and conduct of the parties
as held by the Hon'ble Supreme Court in various judgments.
Thulasidhara & Anr. Vs. Naryanappa & Ors. (2019) 6 SCC
409 [Para 9.5,]. The said Judgments of the Hon'ble Supreme
Court squarely apply to the present case and ExhDW1/3 can
be used as a piece of evidence explaining the settlement/divi
sion arrived at by the brothers and their conduct in imple
menting the same and to see the nature and character of the
possession of the defendants as per Section 49 of the Regis
tration Act, which is the main issue in this suit.
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15) Without prejudice to the submissions ExhDW1/3 being a
family settlement, even though not registered and assuming
for the sake of argument that it was required to be registered,
it would operate as a complete Estoppel against the plaintiff
who was party to the said family settlement and has himself
received his share of properties as stated therein, from con
tending anything contrary to ExhDW1/3. Reliance is placed
on: Kale & Ors. Vs. Deputy Director of Consolidation, AIR
1976 SC 0529, (Para 9, 10, 13, 44, 45) which has been fol
lowed in number of Supreme Court judgments, including
Ravinder Kaur Grewal & Ors. Vs. Manjit Kaur & Ors.) 2020
SCC Online SC 612, Paras 19 to 25.
16) It is evident from the study of the provisions of the Registra
tion Act including section 48, exception carved out in section
49 that the embargo put on seeing a document into evidence
for want of registration is not universal/absolute but purpo
sive as it seeks to protect the bona fide competing interests
and it is not meant to be used as a tool to play fraud on the
Hon'ble Court and illegally grab something that belongs to the
other on the basis of contumacious misrepresentations as the
plaintiff has chosen to do in the present case and then con
tending that the Hon'ble court cannot see the above document
to find out the truth because of the embargo in registration
Act. The contentions made by the plaintiff in this regard are
not only contrary to law and without any merit but only, yet
another mischief on his part.
17) The fact that ExhDW1/3 is titled as award merely records a
Family Settlement/division with the help of their four broth
ersinlaw, (husbands of the sisters of the Plaintiff, Late Sh.
O.P. Arora and Late Sh. B.K. Arora,) the plaintiff's objection
that it having not been made a Rule of Court, is a worthless
piece of paper, is also wholly misconceived. It is clear from the
evidence that the said brothersinlaw have acted only in an
informal manner like panchs in a family matter like facilita
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tors. They being not technical persons, the nomenclature
used by them is not decisive. Facts in the present case are
similar to the case of: Munna Lal (Dead) by LRs. & Ors. Vs.
Suraj Bhan & Ors. [(1975) 1 SCC 556, Paras 6 and 7).
18) It is submitted that even if for the sake of arguments only,
ExhDW1/3 is construed as an award, the defendants can
rely upon it in their defence to nonsuit the plaintiff and show
that the division of the properties had already taken place by
consent of parties and that the same was binding on the
plaintiff, it being a settled law that an unregistered award is
not a waste paper, is binding between the parties thereto,
even though not made rule of the Court, the making of the
award rule of the Court being only required for the purposes
of enforcing the Thakkar Vithalbhai Hargovind and Ors Vs
Kachhia Jagjivan Motilal(Dead) ((1969)10 GLR 288 (Gujrat
High Court) (Para 14, 17, 46, 47, 48) John vs Elikutty (Kerala
High Court)) 8th April, 2009 (Para 5, 10, 13)
19) It is submitted that the consequence of the pronouncement of
the award is that the reference merges into the award and no
suit can be brought on the same subject matter. In view of the
said judgments, even if ExhDW1/3 is read as an award for
the sake of arguments, as is being sought by the plaintiff, it
having decided the rights and liabilities of the parties, the
present suits of the plaintiff including the Lead Suit, are in
competent and liable to be dismissed.
20) With regard to the plaintiff's objection that ExhDW1/3 &
ExhPW1/D4 are not properly stamped and therefore cannot
be looked into evidence, the defendants refer to the submis
sions made in application dated 15.04.2019 and submit that
the plaintiff did not specify in what manner it was deficient in
stamp duty nor it insisted/requested that it should be decided
in the beginning itself nor the Hon'ble court decided that it
shall be decided later on, the effect of which is that the plain
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tiff had given up his said objection and the examination of
this document had also taken place on the basis of said un
derstanding. The same objection was taken up with respect to
ExhPW1/D4, which has already been given up by the plain
tiff on 27.07.19. Without prejudice to the forgoing it has also
been submitted on behalf of the defendants that if any such
deficiency is shown by the Plaintiff as payable by the defen
dants as per law that they are prepared to pay the same and
statement with regards to same has already been given on
27.07.2019. It is thus evident that this document is admissi
ble in evidence and cannot be denied consideration as alleged
by the plaintiff in this regard.
21) The entire basis of the suit is that plaintiff had allowed his
brother Sh. O.P. Arora to be in possession and use of the
property to help redeem him/his family's financial crisis and
that continued till Sh. O.P.Arora died in 1998. This is abso
lutely false and the falsity of this claim has been established
by the fact that the family of late Sh. O.P. Arora was well set
tled and did not need any help. Sh. O.P. Arora was himself
earning, being part of the joint family business, his wife being
an Ayurvedic Doctor in CGHS and a class one Gazetted Offi
cer.
22) The plaintiff has not been able to produce even a single family
member as witness to support his case, which obviously he
would have been able to produce had his claim been bona
fide. On the other hand, the defendants have examined on
their behalf the available best witnesses, that is, one of the
surviving panchs (DW7) and the son of the eldest brother
(DW10), who also received his share of the properties in the
same division and had been part of the family and who are
aware of the truth in the matter and have also no axe to grind.
23) The contention of the Plaintiff that he has been paying ground
rent and house tax of the suit property since inception is not
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only false but also beyond pleadings. It is submitted that dur
ing his life time, Sh. O.P.Arora was paying the ground rent
and house tax with respect to the suit property and this is
also corroborated by the computation of income, annexed with
the assessment order for the financial year 198384 from
when it became the property of Sh. O.P. Arora as explained
above and in this computation of income, which provides the
details of the income and expenses leading to the income re
flected in the Assessment order exhibited as ExhDW1/18. In
this document, the fact of payment of house tax and ground
rent by Sh. O.P.Arora has also been reflected and after his
death (1998), the defendants had been paying the same. The
subsequent payments, if any, by the plaintiff, defendants were
always prepared to pay the same but could not pay only be
cause of the unwarranted conduct of the plaintiff brought out
hereinabove and for no other reason.
24) The oral division in 1983, shop 99, Ring Road Market and the
business of tailoring, apart from other properties, having be
come properties of the plaintiff, he held and enjoyed the said
shop as his exclusive property and made substantial modifi
cations and changes in the said shop to promote his business
by merging it with the two adjoining shops, of which one be
longed to his mother in law and the other one, was perhaps
acquired by him from the market, which the plaintiff would
not have done if shop 99, Ring Road Market had not become
his exclusive property. This conduct of the plaintiff also
clearly proves the family settlement of the properties and
business in 1983.
25) After the death of Sh. O.P. Arora (1998), the plaintiff got cer
tain papers, applications, affidavits, etc. duly signed on the
understanding and assurance given by him to the defendants
that for the time being it is necessary to have mutations of
shop no.99 carried out in the name of defendant no 1 and
thereafter he will take necessary steps to have the shop trans
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ferred in his name and believing him, Defendants signed all
the papers (undated) that the Plaintiff asked them to sign, in
cluding papers for opening of bank account, which he got
opened in the name of Def. No. 1 with Bank of Punjab Ltd at
Alaknanda, Kalkaji, as required by the plaintiff for the said
purpose, much away from their residence at Vasant Kunj,
New Delhi and near the residence of the Plaintiff at Kailash
Hills, near Kalkaji, in the due discharge of the obligation of
extending the required cooperation for bringing change of
name in the record of the department that Sh. O.P. Arora had
undertaken in consequence of the settlement as mentioned in
ExhDW1/3, so that the Plaintiff could take further steps to
get it transferred in his name as told by him. It is only under
the aforesaid facts and circumstances and bona fide for the
above reason, the aforesaid documents were signed by the de
fendants and not to claim any right on this shop and that
contrary contentions stated by the plaintiff in his written ar
guments are also false and malafide, which is also corrobo
rated and made evident by the facts and position narrated
above.
26) The cross examination dated 24.08.2005 of PW2, Sh. B.N.
Jha, LDC, Directorate of Estates, it has also subsequently
emerged that this property could have been got transferred by
the plaintiff in his name on the basis of his continuous pos
session but the plaintiff did not do so and got the above docu
ments signed because he had planned to play fraud on the de
fendants by instituting the present malicious suit.
27) The keys of Shop No 99, Ring Road were taken by the defen
dants on 18.10.2005 only to save it from being lost to the
Govt. and for no other reason, which is also made evident by
the application dated 14.10.2005 filed on behalf of the defen
dants and also that while taking the keys, the defendants also
gave statement before the Hon'ble court that they are taking it
without prejudice to their rights and contentions in the suit. It
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is also submitted that after taking keys of the said shop, no
activity has been done therefrom and it is kept locked and yet
the license fees and minimum electricity charges are being
paid by the defendants to preserve the same.
28) It has also been contended by the Plaintiff that what pre
vented Sh. O.P. Arora from having his name recorded as
lessee of the suit property in the records of the department
and that the distribution of the properties reflected in the doc
ument titled as award (ExhDW1/3) has not been acted upon.
The fact of the matter is that there was no such prevention
but it was only circumstantial because there was no distrust
among the brothers and in fact, after the Division/settlement
in 1983, all other steps had been taken. Further in pursuance
of family settlement in 1983, the original lease and con
veyance deed of the suit property, after their execution, had
also been given by Plaintiff to Sh. O.P. Arora, while only re
taining deeds in respect of the Flat portion with himself corre
sponding to the said distribution. The tailoring workshop had
also been shifted from the suit property in pursuance of the
same. The exclusive possession of the suit property had also
been held and enjoyed by Sh. O.P. Arora during his lifetime
i.e. consequent upon the Division/Family Settlement in 1983
till his death in 1998 as an owner without any interference
from plaintiff and the eldest brother. Likewise, the plaintiff
and eldest brother, Sh. B.K. Arora also held and enjoyed the
properties that fell to their respective shares as owners and as
part of said enjoyment also sold some (Prem Nagar and MIG
booking by plaintiff,) or all (Shop 197 and Flat 110 by Sh.
B.K. Arora) of the properties that fell to their respective shares
without any interference by Sh. O.P. Arora. Also, the various
documents were got executed including relinquishment deed
by Sh. O.P. Arora from the plaintiff. The contention of the
Plaintiff that Shop No 99, Ring Road Market, was given in lieu
of suit property is absolutely false as beside it, plaintiff also
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got Flat No 128, Sarojini Market, Shop at Prem Nagar and
DDA MIG Booking and Rs.40,000/ by each brother.
29) The plaintiff's contention that he having got the suit property
under the Government policy, the defendants cannot com
plain or question the same is not sustainable in law. It is sub
mitted that the Government Policy did not override the Law of
Inheritance laid down by the Parliament and the intention of
the said policy was limited to nominate only one member of a
family with whom it would like to deal for convenience for and
on behalf of all the legal heirs of the allottee/licensee, their in
ter se rights remaining intact, just like in the case of a nomi
nee in a fixed deposit and insurance policy, with whom bank
and insurance company only deal, but this does not affect the
right of inheritance of the other legal heirs.
30) The position submitted above, not only in terms of preponder
ance of probability and also, not only beyond reasonable
doubt but also beyond any shadow of doubt, it is evident
that:
a. the Plaintiff has not been able to establish any of his alle
gations forming the basis of his suit but also it stands
proved that each of his allegations is completely false and
consequently, his suit is liable to be dismissed on this
ground alone, as it is settled principle of law that plaintiff
has to prove his case/stand on his own legs.(Refer Para 10
in the Judgment in State Of M.P. vs Nomi Singh & Anr
CIVIL APPEAL NO. 3050 OF 2015(Arising out of S.L.P.
(Civil) No. 17859 of 2014) decided on 24 March, 2015 by
Hon'ble Supreme Court.)
b. The defendants have established their defence in entirety,
which further disproves the allegations of the plaintiff, and
that his suit is liable to be dismissed with exemplary costs.
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c. Right from inception by starting with suppression of all the
material facts in the plaint, at every stage of the proceed
ings, the plaintiff has only taken recourse to making incon
sistent and false statements in complete disregard to the
law. In the plaint, plaintiff completely suppressed facts re
lating to the joint family status, family division and the
documents evidencing them and that it was duly acted
upon and the documents relating thereto. When defen
dants pleaded the aforesaid facts in their written statement
and filed the relevant documents, in his replication, plain
tiff falsely alleged the said facts to be false and the docu
ments to be selfserving documents got manufactured/ fab
ricated/procured by the defendants or their predecessor in
interest. However, when the Plaintiff was confronted in his
cross examination with the aforesaid facts and documents,
he admitted ExhPW1/D4 and admitted having executed
the relinquishment deed (PW1/D21), again making false
statement that he had signed the same without reading its
contents. Plaintiff's misdemeanor was also recorded by Sh.
D.S. Paweria, the Ld. LC on 25.01.2007 i.e. on the 3rd date
of the start of his cross examination, recording that the
witness was not cooperating and he had to return the file
to the Hon'ble Court for further proceedings. The report of
the L.C. dated 01.02.2007 may be referred to in this re
gard, the contents of which are also reproduced hereunder
for ready reference."......the witness did not cooperate at
the time of recording evidence by not replying the question
and giving his own answers. Local commissioner has its
limitation in terms of law. It is therefore requested that it
will be in the interest of justice if remaining evidence is
recorded by the Hon'ble Court.."
31) The Hon'ble Supreme has held that a person who approaches
the Court for grant of relief, equitable or otherwise, is under a
solemn obligation to candidly disclose all the material/impor
tant facts which have a bearing on the adjudication of the is
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sues raised in the case and if he is found guilty of conceal
ment of material facts, the court not only has the right but a
duty to deny relief to such person. (2010 (3) SCALE 476 - Os
wal Fats and Oils Ltd. Vs. Additional Commissioner (Adminis
tration, Bareilly Division), Bareilly & Ors. (Para 14 to 17). It
has also been held by the Hon'ble Supreme Court that a per
son whose case is based on falsehood, has no right to ap
proach the Court and he can be summarily thrown out at any
stage of the litigation (1994)1SCC1 - S.P. Chengal Varaya
Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs & Ors.
(Paras 1,6).
FINDINGS AND CONCLUSIONS OF THE COURT
The letters ExhDW1/25, ExhDW1/27, ExhDW1/30, Exh
DW1/33 and ExhDW1/36, being photocopies, were deexhibited
and were marked as Mark A, Mark B, Mark C, Mark D and Mark E.
The Ld. Counsel for defendants is correct that defendants could
have been only in possession of the photocopies of the aforesaid let
ters and their originals were with the plaintiff because of the plain
tiff being the addressee of these letters and the defendants accord
ingly have produced the photocopies of these letters, besides prov
ing the postal receipts of registered/speed post pertaining to these
letters in original. The Ld. Counsel for defendants is also correct
that these documents are admissible in evidence by virtue of Sec
tions 65 and 66 of Indian Evidence Act, 1872. The application dated
08.03.2019 under Sections 65 and 66 of the Indian Evidence Act
read with Section 151 of CPC has been filed on behalf of the defen
dants inter alia praying that the above documents, apart from com
putation of income of Sh. O.P. Arora, may also be read into evi
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dence. It is well settled law that there is no requirement to file the
application for reading the documents under the category of second
evidence, if the said documents satisfy the conditions of Section 65
and 66 of Indian Evidence Act, 1872, however, considering the
averments made in the said application as well as overall facts and
circumstances of the case, the said application is allowed and the
aforesaid documents and computation of income of O.P. Arora
would be read in evidence.
The defendants have interalia relied upon the following im
portant and relevant documents:
(a) Relinquishment Deed (Ex.PW1/D5 also marked as
Ex.PW1/D21).
(c) Undertaking (Ex.PW1/D9).
In the Written Statement coupled with aforesaid documents, it
was the categorical stand of the defendants that the Plaintiff has
signed the said documents but the Plaintiff in his Replication has
candidly stated that the said documents are forged & fabricated
and do not bear his signatures. However, during the cross
examination, the Plaintiff has firstly answered that the signatures
on the aforesaid documents are 'similar' to the signatures of the
Plaintiff. Thereafter, the Plaintiff stated that he has signed the said
documents without reading the contents thereof. The said stand
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was also taken for the document dated 29.08.1983 (Exhibit PW
1/D4).
The first stand of the plaintiff qua the said documents was
that the documents do not bear his signatures and the same are
forged and fabricated. The second stand of the Plaintiff qua the said
documents was that the signatures on the said documents are
similar to his signatures. The third stand of the plaintiff qua the
said documents was that the plaintiff has signed the said
documents but without reading the contents of the documents. The
Plaintiff since beginning was aware about his signatures on certain
documents but he has not laid down any foundation in the plaint
that his brothers have obtained his signatures on some documents
but he has signed the same without reading the contents of the
same and as & when the defendants will rely upon the said
documents, then he will reserve his right to challenge the same.
No doubt, in terms of Order 6 Rule 1 CPC, the Replication is
not considered as part of pleadings, however, whenever the Written
Statement is filed and it brings the facts and documentary
evidence, then the Court usually gives the opportunity to the
Plaintiff to rebut the facts and documentary evidence relied upon by
the defendants and in this case, the Plaintiff has availed his
opportunity by filing the Replication to the Written Statement. The
defendants in the written Statement have categorically set up the
facts and documentary evidence, for which the Plaintiff has availed
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his opportunity to rebut the same by filing the Replication.
Therefore, the Replication basically partake the character of Written
Statement to the facts and documents which emerge in the Written
Statement, which were not the part of the plaint, and this Court is
of the view, the basic principles of Orders 6 & 8 CPC would also
equally apply to the Replication to the Written Statement
specifically to the facts and documents which emerge in the Written
Statement, which were not part of the plaint. In view of this matter,
the provision of Order 6 Rule 4 and Order 8 Rule 2 CPC are
reproduced herein for apposite understanding:
"ORDER VI
Pleadings generally
...............
"4. Particulars to be given where necessary.--In all cases in which the party pleading relies on any misrepre sentation, fraud, breach of trust, wilful default, or undue in fluence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
"ORDER VIII [Written statement, setoff and counterclaim] .......
"2. New facts must be specially pleaded.--The defen dant must raise by his pleading all matters which show the suit not be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of de fence as, if not raised, would be likely to take the opposite Suit No. 405/2017 Page 129 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality."
Taking the leaf from the provision of Order 6 Rule 4 read with Order 8 Rule 2 CPC, it is the mandatory duty of Plaintiff to provide the complete particulars regarding false, forgery and fabrication regarding the aforesaid documents. The Plaintiff has made the bald averment without specifying the details, in what manner the aforesaid documents were forged and fabricated document. Furthermore, the plaintiff has not given any explanation regarding aforesaid documents, at the time of filing of Replication. It is not stated in the Replication that the same was signed without reading the contents thereof. Per Contra, it is stated in the Replication that the said documents do not bear his signatures.
The explanation, which was given by the Plaintiff during the crossexamination, has no foundation and the same appears to be evasive in order to wriggle out the contents of the said documents. In the case of Kattinokkula Murali Krishna V. Veeramalla Koteswara Rao, reported in (2010) 1 SCC 466, the Hon'ble Supreme Court was pleased to hold that it is settled principle of law that evidence beyond the pleadings can neither be permitted to be adduced nor can such evidence be taken into consideration. The Hon'ble Supreme Court of India in 2008 (2) RCR (Civil) 879, Anathula Sudhakar V. P. Bushi Reddy (Dead) by LRs & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. also held that any amount of evidence beyond pleadings is not to be considered. The said principle was again endorsed by Hon'ble Full Bench of Hon'ble Supreme Court in the case titled Biraji @ Brijraji and Anr. V. Surya Pratap and Ors. [Civil Appeal No.48834884 of 2017] decided on 03.11.2020. In view of the law laiddown by the Hon'ble Supreme Court of India, it is clear that any sort of evidence beyond pleadings is not to be considered. Moreover, this Court cannot lost the sight of the fact that it is only the Plaintiff, who was graduate in the family and at that time, even the person having graduate degree assume importance specifically in the family which is basically business oriented. Furthermore, the evidence of the Plaintiff was only selfserving evidence. It is apposite to reproduce the provision of Section 102 of Indian Evidence Act, 1872 with illustration (b): " Section 102 On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Illustrations
(a) ...........
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved."
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[Portions bolded in order to highlight] In view of discussions made hereinabove, it is clearly borne out that the aforesaid plaintiff has utterly failed to prove that the aforesaid documents are forged and fabricated. However, at this stage, this Court has not considered that Relinquishment Deed (Ex.PW1/D5 also marked as Ex.PW1/D21) was required to be com pulsory registered.
Now, coming to another conduct of the Plaintiff, the Plaintiff and his brother Shri B.K. Arora were joint Licencees of Shop no.197, Sarojini Nagar, New Delhi. The Plaintiff wrote a letter dated 17.06.1977 (ExDW1/2) to Deputy Directorate of Estates for the deletion of his name from the allotment of Shop no.197, Sarojini Nagar, New Delhi. The plaintiff has tried to conceal the said fact during the proceedings of this case. During his crossexamination on 8th August, 2011, the plaintiff claimed ignorance of the fact that the allotment of Shop no.197, Sarojini Market, New Delhi was in the joint names of Sh. B.K. Arora and the Plaintiff i.e. Sh. M.L. Arora. He was confronted with aforesaid letter dated 17.06.1977 but the plaintiff denied his signatures on the said letter. The defendants have filed an application dated 26.09.2011 for summoning the additional witness and record from NDMC to establish the aforesaid letter. The said application was also opposed by plaintiff, however, Ld. predecessor of this Court has allowed the Suit No. 405/2017 Page 132 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. said application. The DW6, witness from NDMC, proved ExDW6/1 to ExDW6/6. The plaintiff has still refused to admit his signature on the aforesaid letter. The defendants moved an application under Section 45 of the Indian Evidence Act, 1872, for examination of the signature of the plaintiff by expert and whereupon, the plaintiff admitted his signature on the document (ExDW1/2) and his statement was recorded on 17.06.2017.
Similarly, at various stages, which are discussed herein below, the plaintiff has tried to disown various documents including the letters written to P.N.B. on the ground that the same was signed by him without reading the contents of the same or the matter was solely dealt by Late Shri O.P. Arora and he has shown ignorance about the contents of the said letters.
This Court is of the considered opinion that the Plaintiff has not approached the Court with clean hands and has tried to sup press and conceal the material facts in order to abuse the process of Court. The Ld. Counsels for defendants have rightly pointed that at every stage of the proceedings, the plaintiff has tried to suppress the material and also disowned his own signatures on material doc uments just to abuse the process of the Court. The Hon'ble Supreme Court of India in S.P Chengalvaraya Naidu vs Jagan nath reported as AIR 1994 SC 853= 1994 SCC (1) 1 as held as under: Suit No. 405/2017 Page 133 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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".....1.Fraud avoids all judicial acts, ecclesiastical or tempo ral" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether supe rior or inferior. It can be challenged in any court even in col lateral proceedings....".
...6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of de liberate deception with the design of securing some thing by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He pur chased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, exe cuted the registered release deed (Ex. B15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decre tal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the par tition of the property on the ground that he had pur chased the property on his own behalf and not on be half of Chunilal Sowcar. Nonproduction and even non mentioning of the release deed at the trial is tanta mount to playing fraud on the court. We do not agree with the observations of the High Court that the appel lants defendants could have easily produced the cer tified registered copy of Ex. B15 and nonsuited the Suit No. 405/2017 Page 134 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
(Portions bolded in order to highlight) On the basis of the aforesaid Judgment of Hon'ble Supreme Court, the suits of the plaintiff are liable to be dismissed on this ground alone.
Dehors the same, this Court will now examine the Award dated 25.09.1983 (Exhibit DW1/3). This Court has already held that the Plaintiff and other two brothers namely S/Shri B.K. Arora and O.P. Arora have nominated four brotherinlaws (husbands of their sisters) by means of the letter dated 29.08.1983 (Exhibit PW 1/D4) and who acted as Panchas. Therefore, the plaintiff was very well aware about the said nomination and the same was in respect of the joint properties of the parties i.e. three brothers. The DW7 has entered the witness box to prove the Award dated 25.09.1983 (Exhibit DW1/3). The DW7 was one of the Panchas. The parties themselves, by means of letter dated 29.08.1983, have referred the said properties as joint family parties (although written as ancestral properties), therefore, it was not incumbent upon the Panchas to go through the documentary evidence of the said properties. There may be some minor contradictions during the crossexamination of Suit No. 405/2017 Page 135 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. DW7, however, his testimony with respect to material particulars remains intact. Furthermore, this Court cannot lost the sight of the fact that the Award was of dated 25.09.1983 and DW7 has deposed from 09/10/2014 to 01/07/2015 and at the time of deposition, he was more than 73 years of age. The said witness is having the same relationship with both i.e. the plaintiff and Late Shri O.P. Arora. The minor contradictions are bound to happen after lapse of more than 30 years, but that will not take the veracity and credibility of the said witness. The DW10 who is the son of Late Shri B.K. Arora, has also come to depose in favour of the said Award and its implications thereof. The said witness has also deposed that respective brothers, after passing of the Award dated 25.09.1983, were enjoying the properties as owners thereof. Considering the entire facts and cir cumstances of the present case, this Court has no hesitation to hold that Award dated 25.09.1983 was penned down by four Pan chas i.e. brothersinlaw of Plaintiff and Late S/Shri B.K. Arora and O.P. Arora on their nomination.
Before adverting to the question whether the Award dated 25.09.1983 and Relinquishment Deed Ex.PW1/D21 require registration or not, this Court will, first of all, consider the post events which were happened after passing of the Award dated 25.09.1983.
The perusal of the records reveals that the plaintiff was not paying the income tax returns of Arora Tailors & Drapers from 1971 Suit No. 405/2017 Page 136 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. to 1983, however, post Award dated 25.09.1983, the plaintiff had started showing the income of Arora Tailors & Drapers in the Income Tax Return. The relevant portion of the computation of Income of Mr. M.L. Arora, Prop M/s Arora Tailors & Drapers for the Financial year 19851986 (Assessment year 198697Exhibit PW1/D3) is reproduced as under: "....Note: Sh. M.L. Arora has taken over the assets and liabilities of M/s Arora Tailors and Drapers, 99, Ring Road Market, Sarojini Nagar from Sh. O.P. Arora S/o Late Sh. H.R. Arora as per Mutual Agreement.."
It is also borne out of the record that Income Tax Returns of the Commercial College were filed in the name of the Plaintiff prior to Award, however, post award, Late Sh. O.P. Arora also started showing the Income Tax Return of Vijay Commercial College for a brief period as thereafter, the Lease Deed dated 17.11.1983 Ex.PW1/D10 was executed by Late Sh. O.P. Arora in favour of Punjab National Bank (PNB) in respect of the suit property. The said Deed was witnessed by Sh. M.L. Arora and Sh. B.K. Arora i.e. the plaintiff and his eldest brother respectively. Similarly, it is not disputed that the Plaintiff had executed the Lease Deed dated 17.11.1983 in favour of Punjab National Bank (PNB) in respect of the first floor of i.e. Flat of property bearing No.128, Sarojini Market, New Delhi.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. The plaintiff has come out with the case that since Sh. O.P. Arora was in financial crisis, therefore, the plaintiff has allowed Late Sh. O.P. Arora to letout the suit property to PNB vide Lease Deeds dated 17.11.1983 and 15.11.1991. The further contention of the plaintiff is that Sh. O.P. Arora was authorized by Special Power of Attorney to execute the said Lease Deeds.
First of all, the perusal of Lease Deeds dated 17.11.1983 and 15.11.1991, nowhere, reveal that Sh. O.P. Arora has acted as Attorney Holder of Sh. M.L. Arora. The perusal of the said Lease Deeds reveals that Sh. O.P. Arora as the 'lessor' has acted in his own name and he has not acted as attorney of the Plaintiff. Moreover, as per admitted case of Plaintiff, Sh. O.P. Arora has shown the rental income from PNB in the income tax record in his own account in respect of the Suit Property and the plaintiff has shown the rental income in the Income Tax records in respect of flat i.e. first floor of the property.
This Court can also take the notice of the fact that the banks usually do not take the property without verification of the records which includes the rights of the parties for letting out the property and in this respect, the PNB must have taken the legal opinion of the same. The Plaintiff could have summoned the concerned record of the PNB that on what basis, the PNB had entered into the Lease Deed with Shri O.P. Arora as the Plaintiff is claiming that he was Suit No. 405/2017 Page 138 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. acting as Attorney, however, no such record was either summoned or brought on record by the Plaintiff.
In case, Sh. O.P. Arora ought to have acted as Attorney of the plaintiff, then, in that case, Sh. O.P. Arora was mere rent collector on behalf of the plaintiff and he ought not to have taken the rental income in his own saving account and would not have shown the rental income of the suit property in his own account in the income tax records and the plaintiff ought to have given the income tax instead of Shri O.P. Arora. The Plaintiff himself admitted that Shri O.P. Arora has shown as his income in the income tax records. The Court has to presume that PNB, after verifying the right, title and interest of Shri O.P. Arora, has agreed to enter the Lease Deed in his favour.
Now, coming to the question of financial crisis, the plaintiff has not led any independent, cogent and convincing evidence which could even remotely show that Sh. O.P. Arora was in financial crisis. It is borne out from the record that commercial college was started by Sh. Hans Raj Arora in the year 195152, which was initially carried on with the help of Late S/Sh. B.K. Arora and O.P. Arora. After the death of Sh. Hans Raj Arora, the said business was carried own by S/Sh. B.K. Arora and Sh. O.P. Arora in the name of Smt. Vidyawati i.e. mother of the three brothers. There is no dispute that the said business of commercial college was continued from 195152 till the property was letout to PNB. If, there were Suit No. 405/2017 Page 139 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. losses in the said business of commercial college, then S/Sh. B.K. Arora and Sh. O.P. Arora could have discontinued the said business at least immediately after the death of Sh. Hans Raj Arora in the year 1961 or thereafter, but they have continued till 1983 i.e. about 22 years after the death of their father. The business of commercial college was more than 30 years old at the time of lettingout the premises to PNB. This Court cannot even imagine that Sh. O.P. Arora, who was contributing in the said business for about 2530 years (till 1983) that he was not even earned so much that he was not able to sustain his daytoday livelihood of his family.
The plaintiff has not surfaced any material on the record that Shri O.P. Arora was in financial crisis. Per Contra, the defendants have brought cogent, convincing and authentic evidence to show that defendant no.1 (Smt. Santosh Arora) was Class1 employee i.e. Ayurvedic Doctor in CGHS and she was earning handsome salary in the year 198384 and 198485. The perusal of income tax records of Sh. M.L. Arora i.e. Plaintiff of the financial year 198586 and the perusal of salary account record of defendant no.1 (i.e. Smt. Santosh Arora) apparently reveals that she was earning at par with Shri M.L. Arora and further, she was having more than sufficient salary to cater the daytoday livelihood of the family. It is not the case of the Plaintiff that that there was dispute between Shri O.P. Arora and defendant No.1 at any point time including the said period.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. Furthermore, the perusal of Lease Deed dated 17.11.1983 reveals that same was for a period of three years and further extendable by three years, if PNB exercises its option to extend the Lease within one month from the expiry of original term of three years. The Lease Deed dated 17.11.1983 was admittedly expired by efflux of time on 05.11.1989. The rent, even for the first three years, was Rs.6,000/ per month of the suit property and after three years, the same was admittedly increased by 15%. Even if, we multiply Rs.6,000/ per month for first three years, the same comes out to Rs.2,16,000/. The Ld. Counsel for the Plaintiff has argued that a sum of Rs.40,000/ was huge amount at that time. If, the sum of Rs.40,000/ was huge amount, then definitely Rs.72,000/ per year rental income was much higher than the said amount and within first three years, Shri O.P. Arora must have got the sum of Rs.2,16,000/ as rental income from the suit property. Thereafter, admittedly, the rental amount was increased to 15% and Shri O.P. Arora must have got Rs.2,48,400/ over and above the amount of Rs.2,16,000/ before the expiry of Lease dated 17.11.1983 by efflux of time. In the year 2003, the Plaintiff has assessed the value of the suit property to the tune of Rs.12,00,000/ and fourteen years back Shri O.P.Arora got Rs.4,64,400/ which is about 40% of the said amount.
The plaintiff cannot, by any stretch of imagination, say that from the year 1983 to 1989 (i.e. till the expiry of the Lease Deed by Suit No. 405/2017 Page 141 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. efflux of time), Sh. O.P. Arora was not able to regain and recoup his alleged financial status from the rental income received by him from PNB. If, the Plaintiff was the owner of Shop No.128, then the plaintiff, after expiry of the said Lease Deed, ought to have asked Shri O.P. Arora that now he has regained the alleged financial crisis by collecting the rent for about six years, therefore, the plaintiff would alone follow the matter with the PNB and he will execute the Lease Deed, if any, for post expiry of the aforesaid Lease Deed dated 17.11.1983. However, post expiry of the said Lease Deed, the Plaintiff unilaterally as well as Plaintiff and Shri O.P. Arora jointly has followed PNB to execute the fresh Lease Deed in respect of the suit property on the revised terms and conditions in favour of Shri O.P. Arora.
The various letters which were written to PNB are most important and relevant piece of evidence. The relevant portion of letter dated 28.06.1989 (Exhibit PW1/D11) addressed to PNB is reproduced as under: "New Delhi 28th June, 1989 The Manager, Punjab National Bank, Sarojini Nagar, Market, New Delhi Dear Sir, Suit No. 405/2017 Page 142 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. We, the undersigned beg to submit that our shop and Flat No. 128, Sarojini Nagar Market, New Delhi is rented out to your bank at Sarojini Nagar Market branch on monthly agreement basis. The agreement is due to expire in the month of November, 1989. As per terms of agreement if the bank desires to continue the same a fresh agreement has to be executed on new terms and conditions and at rates prevalent in the area at present.
We may also add here that NDMC has sanctioned Standard Plan for additional construction in our building i.e. provision for about 780 sq.ft. more besides the already constructed area and we intend to construct the sanctioned plan, the details of which area as under:
Additional Space that can be provided to the bank Basement 160 sq. ft. 160 sq.ft.
Ground160 sq. ft. 160 sq.ft.
Ist Floor 160 sq. ft. 160 sq.ft.
IInd Floor 300 sq.ft.
___________
780 sq.ft.
___________
In case the bank needs extended constructed area, a new agreement has to be formulated after mutual discussions. The present prevailing market rate is Rs.25/ per sq.ft. and the bank may like to discuss and chalk out the details of future agreement to be executed by us.
It is, therefore, requested that kindly let us know your viewpoint regarding extension of agreement and Suit No. 405/2017 Page 143 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. the rate of rent, duration and period of agreement. We may submit that additional construction can be carried out without causing any hindrance in the routine working of the bank.
An early reply in the matter will be highly appreciated so that the complete formalities and necessary approved standard plan can be got cleared from NDMC regarding additional construction of the area.
The reason for applying so early is that a considerable time gets consumed in exchange of communications and correspondence between the bank and the undersigned. It will not only help in early completion of formalities but also executing the agreement to be signed in time.
Yours faithfully,
(O.P. ARORA) (M.L. ARORA)
OWNERS
(Correspondence 99, Ring Road Market,
address) Sarojini Nagar, New Delhi.
Copy to ...."
(Portions bolded in order to highlight)
The perusal of the aforesaid letter apparently and vividly reveals that Shri O.P. Arora and Sh. M.L. Arora referring the word "our shop and flat" and it does not refer that it exclusively belongs to Shri M.L. Arora or that Shri O.P. Arora was acting as the Attorney of Shri M.L. Arora i.e. Plaintiff. Shri O.P. Arora and Sh.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. M.L. Arora have given the offer to even construct the additional construction as per the sanctioned Site Plan of NDMC and offer to letout the same to the bank. Further, at the bottom, the word "Owners" is reflected and not the "Owner". The important thing which was also emerge out of the said letter is that the correspondence address has been shown as 99, Ring Road Market, Sarojini Nagar, New Delhi and it is borneout from the record that at the relevant time, the exclusive possession of the said property was with the Plaintiff as he was carrying on the business of Arora Tailors & Drapers from the said address.
The relevant portion of letter dated 18.09.1989 (Exhibit PW 1/D13) addressed to PNB is reproduced as under: "The Manager, Punjab National Bank, Vinay Nagar, New Delhi23.
Sir, Reg: Renewal of Rent Agreement of shop and Flat No.128, Sarojini Mkt. New Delhi - 23.
Please refer to your letter dated 23.8.89 addressed to your Sr. Regional Manager, South Delhi Region on the captioned subject. It is revealed therefrom that you have recommended for our premises the monthly rent of Rs. 22,500/ (GF @ Rs.19/ and FF @ Rs.17/ per sq. ft.) which is not at all suitable to us. In this connection we may cite a reference to our letter dated 28.6.89 (copy enclosed) in which we have quoted the monthly rent of Rs.25/ per sq. ft.
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However, to be very sure, we may add here that we are not ready to accept the rate below Rs.20/ per sq.ft. (flat rate for the whole premises GF and FF). Previous the rate of FF used to be less as it was for residential purpose, but Bank is using both the floors for commercial purpose. Your goodself will appreciate that the above rates is quite appropriate and reasonable keeping in view the prevailing market rates which is in fact are shooting very high.
Therefore, it is humbly stated that we would highly appreciate your early reply in this regard as some other big concern is also after our premises, whereas we are willing to continue with your bank. Sir, may be remind that old rent agreement is expiring on 5.11.1989.
Thanking you, Yours faithfully, th Dated: 18 Sept.1989.
( M.L. Arora ) C/o. Shop No. 99, Ring Road Market, Sarojini Nagar, New Delhi110023."
(Portions bolded in order to highlight) The perusal of the aforesaid letter apparently reveals that the same was written only by the Plaintiff, but still the Plaintiff has used the word "we". There is reference to letter dated 23.08.1989, which was internal letter of the bank, but still the plaintiff was in Suit No. 405/2017 Page 146 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. the knowledge of the said letter. The plaintiff has himself referred to the aforesaid letter 28.06.1989 (Exhibit PW1/D11) and even the copy of the said letter was enclosed. This implies that the Plaintiff was very well aware about the contents of the said letter dated 28.06.1989 (ExPW1/D11). The address is shown as C/o Shop No. 99, Ring Road Market, Sarojini Nagar, New Delhi110023 and at the cost of repetition, it is reiterated that at the relevant time, the same was in exclusive possession of the Plaintiff.
The relevant portion of letter dated 07.10.1989 (Ex.PW1/D14) addressed to PNB by Plaintiff is reproduced as under: "New Delhi 7th October, 89 The Manager, Punjab National Bank, Vinay Nagar New Delhi Dear sir, Reg: Renewal of Rent Agreement of Shop and Flat No.128, Sarojini Nagar Market, New Delhi Kindly refer to our letters dated 28th June, 89 and 18th September 89 resting with you on the captioned subject. In this connection, your kind attention is invited for renewal of the Agreement. Please expedite and intimate the modalities sorted out by you since a considerable time has elapsed and nothing has been heard from you so far.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. This may please be treated as most immediate as old agreement is expired on 51189.
Thanking you, Yours faithfully, ( MOHAN LAL ARORA ) Shop No. 99, Ring Road Market, Sarojini Nagar, NEW DELHI Copy forwarded ...."
(Portions bolded in order to highlight) The aforesaid letter also vividly reveals that the same was also written by Plaintiff himself and again he has referred to "our earlier two letters" and address is also the same.
The relevant portion of letter received on 10.11.1989 by PNB (Exhibit PW1/D15) was addressed to PNB by Plaintiff and Shri O.P. Arora is reproduced as under: "The Senior Manager, Punjab National Bank, Vinay Nagar, New Delhi Dear Sir, Renewal and enhancement of rent of Shop and Flat No.128, Sarojini Nagar Market, New Delhi Suit No. 405/2017 Page 148 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. Please refer to the discussions the undersigned had with you on the captioned subject. The queries raised during discussions are clarified as under:
i) As you know our earlier lease Agreement stipulates increase of 15%. Now with the acceleration of prices and increase in the rent of locality necessitates that the Bank should henceforth increase the rent atleast by 20% after 3 years. As such the provisions of B.C.A. has no relevance in this regard.
ii) No commercial space is available in Sarojini Nagar Market at any price. To be very clear, it is worth mentioning here that people are charging lakhs of rupees as PAGRI for changing the rent lease. Thus you will appreciate that Rs.20/ Per sq. ft. for the covered area as demanded by us is quite reasonable. At the pursuation of the Branch Manager, we have already agreed to his request for reducing the rent from Rs.25/ to rs.20/ as such there is no further scope of reduction in rent demanded by us.
iii) We may also clarify that Rs.20/ per sq.ft. were already offered by your Bank to one Shri Mukand Lal, owner of Shop No. 188, Sarojini Nagar Market, New Delhi in the beginning of 1988 which was not acceptable by him as he had demanded higher rent and your offer fizzled out. But now there is tremendous increase in the market rent and that too of commercial areas. This increase will hardly enable us to meet the IncomeTax, Property Tax, Wealth Tax and other incidental expenses which you must realise will not be of much benefit to us.
Keeping in view the foregoing facts, please convey us earliest as Old Agreement had already expired on 511 1989.
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Thanking you,
Yours faithfully,
(M.L. ARORA) (O.P. ARORA)
Owners of Shop and
Flat No.128,
Copy forwarded ......"
(Portions bolded in order to highlight)
The aforesaid letter also reveals that Plaintiff was also involved in the discussions as word "undersigned" is used for Plaintiff and Shri O.P.Arora. It also clearly says "Owners".
The Relevant portion of Letter dated 07.03.1990 (Exhibit PW1/D16) addressed to PNB by Plaintiff and Shri O.P. Arora is reproduced as under: Dated: 731990 The Senior Manager, Punjab National Bank, Vinay Nagar Market, NEW DELHI Dear Sir, REMINDER - for renewal of Rent Agreement of flat & Shop No.128, Vinay Nagar Market, New Delhi Suit No. 405/2017 Page 150 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. It is requested that we had written to your bank initially on 29689 on the captioned subject and several reminders in this regard have been sent to your kind authorities. In this connection we may add that as and when your bank had asked for any document/documents, these were provided to your bank well in time and the necessary required clarifications were also made clear to your goodself personally.
Further the bank is crediting to our Account which is in the same branch the rent as per old Agreement, which has already expired on 51189.
You may please also recall our telephonic conversations/meetings which we had with you on several occasions. From these meetings it is gathered that the matter is lying with your higher authorities, which is not at all appreciable as the considerable time has already elapsed. You are therefore once requested to please pursue the matter with your higher authorities and expedite the matter as early as possible.
An early reply is highly appreciable.
Yours faithfully, OWNERS (M.L. ARORA) (O.P. ARORA) Shop & Flat No. 128 Copy to Regional Manager, Punjab National Bank, Competent House, Connaught Place, New Delhi.
Copy to Zonal Manager, Chander Lok Building, Connaught Place, New Delhi.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
(M.L. ARORA) (O.P. ARORA) OWNERS"
(Portions bolded in order to highlight) The relevant portion of letter dated 30.09.1991 (Ex.PW1/D17) addressed to PNB by Plaintiff and Shri O.P. Arora is reproduced as under: "New Delhi 30th September, 1991 The Zonal Manager, Punjab National Bank, Chander Lok Building, Janpath, New Delhi Dear Sir, Revision of rent w.e.f. 6111989 for 128, Sarojini Nagar Market, New Delhi.
Kindly refer to our meeting we had with you in your office on 2091991 on the above subject. During the course of discussions you were kind enough to intimate that Head Office had approved the following rent to be paid in respect of the above premises:
i) Rs.18.00 per sq.ft. Ground floor ii) Rs.16.00 per sq.ft. 1st floor
iii) the rent will be effected after the required modification is done by the undersigned.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
In this connection your goodself may kindly recall that our Agreement to let the premises to the bank had already expired on 5111989 and we have been pressing the bank time and again by way of letters and personal meetings with the Regional Manager, Zonal Manager and other concerned authorities that we will accept the enhanced rent from the expiry of our Agreement i.e. 51189. It is a known fact that rents in the locality i.e. Sarojini Nagar market has shot up tremendously but we are getting from the bank a fragment of the rent which is being paid/ charged by other residents of the locality. We must mention here that Bank had offered Rs.20/ per sq.ft. To one Shri Mukand Lal of Shop No.128, Sarojini Nagar Market in the year 1987 for taking additional space which he refused to accept because as to him the rent offered was low than the prevailing rates in the market and it is surprising that the rent offered was approved by your Head Office.
Therefore we again request the authorities to consider our case on merit for enhancement of rent from the date of expiry of the Agreement on the analogy of enhancement of rent done in the case of your Green Park branch where the Landlord has been paid enhanced rent from the date of expiry of the Agreement with the approval of Head Office authorities. Needless to add, there has been no modification in the premises of Green park branch nor any additional space has been provided by the Landlord to the Bank. The only reason for enhancement of rent was that "AGREEMENT HAD EXPIRED".
It is therefore, requested that we are entitled for enhancement of rent legally as well as on merits in view of what has been stated above.
Thanking you, Suit No. 405/2017 Page 153 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Yours faithfully,
(O.P. ARORA) (M.L. ARORA)
Owners"
(Portions bolded in order to highlight)
The relevant portion of letter received on 28.08.1991
(Ex.PW1/D19) by PNB by Plaintiff and Shri O.P. Arora is reproduced as under: "The Senior Manager, Punjab National Bank, Vinay Nagar Branch, New Delhi110023.
REVISION OF RENT W.E.F. 6111989 FOR 128, SAROJINI NAGAR MARKET, NEW DELHI.
We express our thanks for approving the rent rate i.e. Rs.18/ per sq. ft. for the ground floor and Rs. 16/ per sq. ft. for the first floor for the above premises.
We would like to draw your kind attention that our agreement with the bank expired on 5.11.1989 and we wrote to the Bank 6 months before the expiry. The bank took very long time for revising the rate of rent. Now since the revised agreement is to be executed that is from 6.11.1989 and hence these rates are to be paid to us effective from 6.11.1989, because as a matter of principle the revision is effected from the renewal date and the renewal is to be made from the next day of the expiry of the agreement date i.e. 5.11.1989.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. It is pertinent to mention that even this rent which is being offered by the Bank is much less than the prevalent market rent, but since we felt to cooperate with the bank, we did not raise any objection.
We have therefore to submit that this revision of rent should be effected from 6.11.1989 and oblige. We further request you to kindly give us six month rent in advance for making necessary repairs which will be adjustable in first 5 years of the lease.
Thanking you, Yours faithfully, (O.P. ARORA) (M.L. ARORA)" (Portions bolded in order to highlight)
The relevant portion of letter dated 01.10.1991 (Ex. PW1/D18) addressed to PNB by Plaintiff and Shri O.P. Arora is reproduced as under: "New Delhi 1st October 1991 Shri Rashid Jalani, Chairman, Punjab National Bank, Connaught Place, New Delhi.
Dear Sir, Suit No. 405/2017 Page 155 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
Revision of rent w.e.f. 6111989 for 128, Sarojini Nagar Market, New Delhi We sought appointment with Shri G.D. Goolani, General Manager of your bank today at 9.30AM through his P.A. When we went to see him, his attitude was very much indifferent and he was behaving in a most fantastic manner. He was not prepared to discuss the point for which had sought appointment. Ultimately he agreed and during the course of discussions for payment of rent, he threatened us saying "you do whatever you want; I will not change my decision. We apprised him that in a similar case of Green Park branch you have paid the rent from the date of expiry of the Lease Agreement, then why it can't be in our case?" Can you specifically tell us the reason? On hearing this he shouted at us - Go away from my room; Don't spoil my mood? He left his room in a rash manner saying the bank will vacate your premises within no time and again said get the premises vacated if you can?.
This is to bring to your kind notice that on the one side he is saying the bank will vacate the premises within no time and on the other hand get the premises vacated if you can. What does it mean. Are we beggars. Sir, it is therefore requested that if the bank will vacate our premises we shall be highly obliged and if not our right should be given to us. We are landlords afterall. We are not getting charity from the bank. The humilation we have faced today in your office in your G.M.'s room can better be imagined than to be described in words.
Sir, we are really sorry to bring this episode to your notice as it is unbecoming/unbearable behaviour of such a senior officer of the bank. We have been having most Suit No. 405/2017 Page 156 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. cordial relations with you for the last 8 years and no one/no officer in your bank has behaved in this fashion as he has done for the reason best known to him.
We would like you to intervene in the matter with a view to investigate why he misbehaved/how the rent for Green Park branch was paid after the expiry of Lease Deed and why a different yardstick is being applied in our case.
We are sure your honour will look into the matter and help us in having our legitimate and just right.
Yours faithfully,
(O.P. ARORA) (M.L. ARORA)
Owners...."
(Portions bolded in order to highlight)
The relevant portion of letter dated 15.10.1991 (Ex.DW1/9) of PNB addressed to Plaintiff and Shri O.P. Arora is reproduced as under: "PUNJAB NATIONAL BANK VINAY NAGAR, NEW DELHI Date:15th Oct. '91 Sh. O.P Arora and Sh. M.L Arora Owners of premises no. 128 Sarojini Nagar. New Delhi.
Reg: Revision of rent for above premises.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. In reference to your correspondence/request for revision of rent for premises no. 128, Sarojini Nagar, New Delhi, we are to say that the authorities have agreed to revise the rent as Rs.18/ per sq. feet for ground floor and Rs 16/ per sq. feet for the first floor on covered area basis subject to your carrying out the required modifications (as discussed by you with our authorities). The received rent as stated above will be paid only when you get the modifications done to the entire satisfaction of bank authorities and when the fresh lease deed on the terms and conditions is executed. The date of revision of rent will naturally from a day when fresh deed is executed.
SENIOR MANAGER"
The aforesaid letters were either written by the Plaintiff himself or by Plaintiff and Shri O.P. Arora and none of the letters was written by Shri O.P. Arora alone. The address of correspondence was the place where the Plaintiff was in exclusive possession. The aforesaid letters vividly reveal that it was the Plaintiff who was vociferously and vigorously communicating with the bank. The reference with respect to "owners of shop and flat"
or "owners" in the said letter can be interpreted only that the owner of shop is Sh. O.P. Arora and owner of the flat is Sh. M.L. Arora. No other interpretation can be given to the said connotation as admittedly the Lease Deed dated 17.11.1983 for the Shop was executed by Shri O.P. Arora prior to the said letters and thereafter, the fresh Lease Deed dated 15.11.1991 was also executed by Shri O.P.Arora in favour of PNB. Similarly, Lease Deed dated 17.11.1983 Suit No. 405/2017 Page 158 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. and thereafter, Lease Deed dated 15.11.1991 for the flat was executed by the Plaintiff alone. The letters also reveal that Sh. M.L. Arora i.e. Plaintiff has laid lot of emphasis on the revision of rate of rent of the shop and flat will be similar as the bank is using both of them for their commercial purposes. The reference to construction is also mentioned in one of such letter which commensurate with one of the fact mentioned in the Award dated 25.09.1983.
The theory, which was propounded by the plaintiff that Sh. O.P. Arora was unilaterally following the matter with the PNB Bank or that Sh. O.P. Arora was in the financial crisis, is not supported by any independent evidence. Per contra, the defendants have placed on record sufficient material, which clearly reveals that the Plaintiff was following the matter with the PNB and further, the family of Sh. O.P. Arora was not in financial crisis. There is no iota or scintilla of evidence placed on the record to even show the semblance of financial crisis for the family of Shri O.P. Arora. The said theory, as propounded by the Plaintiff, has fallen flat on his face.
The plaintiff has also submitted that post Award in 1983, the Lease Deed dated 06.04.1984 and Conveyance Deed dated 06.04.1984 were executed in favour of the plaintiff alone and the same was also witnessed by S/Sh. B.K. Arora and Sh. O.P. Arora and that Shri O.P. Arora or the defendants, at point of time, has objected to the same. The Ld. Counsel for the Plaintiff during Suit No. 405/2017 Page 159 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. rebuttal arguments has also taken objection that the defendants have neither challenged nor sought cancellation of the Lease Deed/Conveyance Deed dated 6th April, 1984 under Section 31 of the Specific Relief Act, which challenge is now time barred under Article 59 of the Limitation Act. The Ld. Counsel for defendants has made the following submissions:
(i) Section 31 of the Specific Relief Act has no application to the facts of the present case as the Conveyance deed and Lease deed dated 6th April, 1984 were/are neither void nor voidable against Sh. O.P. Arora nor there was ever any apprehension in his mind that the plaintiff will or may cause injury to him on the basis of these documents, in as much as, a. the Original conveyance deed and Lease deed were handed over by the plaintiff himself to Sh. O.P. Arora in view of the said Family settlement/Division and he never asked for them, b. since the time of the said Family settlement/Division/ in 1983 and till his death in 1998, Sh. O.P. Arora was exer cising all ownership rights with respect to the suit prop erty, even post execution of the conveyance deed and lease deed, including letting out, collection of rent etc. within the knowledge of the plaintiff and without any challenge or interference thereto by the plaintiff, c. the plaintiff also, anytime before 1998, from the time Sh. O.P. Arora became the owner of the suit property, did not assert ownership rights therein or did anything, directly or indirectly which was inconsistent to the ownership Suit No. 405/2017 Page 160 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. rights of Sh. O.P. Arora in the suit property, on the basis of lease deed and conveyance deed in his favour.
The defendants have brought on record the cogent and convincing evidence that the aforesaid original Lease Deed and Conveyance Deed of the suit property were handedover to Sh. O.P. Arora after the execution of the aforesaid documents. The plaintiff has, although, alleged that in the year 1997, when the suit was to be filed against PNB, then Sh. O.P. Arora had taken the original documents, however, the plaintiff has miserably failed to prove that the original Lease Deed and Conveyance Deed were handedover in the year 1997. The Plaintiff has not been able to brought on record either oral or documentary evidence that the Lease Deed and Conveyance Deed of the suit property were handedover to Sh. O.P. Arora in the year 1997. Furthermore, in the suit to be filed against the tenant, there was no requirement to prove the ownership and there were plethora of documents, including the aforesaid letters and Lease Deeds, which would reflect that the bank has considered Shri O.P. Arora as OwnerLessor of the Shop and Shri M.L. Arora as OwnerLessor of the Flat.
Per contra, the defendants have examined DW7 and DW10 to prove that the Lease Deed and Conveyance Deed were handed over to Sh. O.P. Arora after the execution of the said documents. The testimony of DW7 remained unchallenged on this aspect. Moreover, Sh. O.P. Arora was also taking the rent from PNB even Suit No. 405/2017 Page 161 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. after execution of the said Lease Deed and Conveyance Deed in favour of the Plaintiff. In the various letters sent to PNB, as mentioned hereinabove, the Plaintiff himself has admitted Sh. O.P. Arora as owner of the suit property.
In the year 1991 i.e. after execution of seven years of aforesaid Lease Deed and Conveyance Deed, again Sh. O.P. Arora had executed the Lease Deed dated 15.11.1991 in favour of PNB. The theory which was propounded by the Plaintiff that original documents were handedover to Late Shri O.P. Arora in the year 1997 at the time of filing of the suit against the PNB has not been proved by the Plaintiff and defendants have been able to prove that the same were handedover immediately after execution thereof to Late Shri O.P. Arora.
After the expiry of the Lease Deed dated 15.11.1991, there was another development which has happened that the plaintiff has filed the suit for the first floor i.e. flat of property bearing no. 128, Sarojini Nagar Market, New Delhi and Late Sh. O.P. Arora had filed the suit pertaining to the shop no. 128, Sarojini Nagar Market, New Delhi i.e. the ground floor. The said suits were filed together by one Advocate namely Sh. Yakesh Anand. The Plaintiff has submitted that Shri Yakesh Anand was engaged by Shri O.P. Arora. There is no evidence which has been surfaced on the record that he was appointed by Shri O.P. Arora solely and not by the Plaintiff or that the Plaintiff was not following up the matter.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. The advocates cannot be considered as layman for the litigation but suppose to know the nittygritty and fine technicalities of the matter and the advocates draft the pleading on the instructions and documentary evidence provided by the litigant. Similarly, the said cases were definitely briefed by the litigants i.e. Shri O.P. Arora and Shri M.L. Arora (i.e. Plaintiff). The Plaintiff, by putting allegations upon Shri O.P. Arora, is, infact, putting the allegations upon Counsel Shri Yakesh Anand as if, he had acted solely on the instructions of Shri O.P. Arora and has drafted the pleadings solely on his instructions. The counsel cannot be expected to draft the pleadings without consulting the litigant. It is also interesting to note that the Plaintiff himself was taking the services of Shri Yakesh Anand, Advocate against the defendants and the perusal of Order dated 13.05.2014 reveals that he was represented by Shri Yakesh Anand in the FAO (OS) No.579/2013, which case was filed by the defendants. It is totally unthinkable, unimaginable and indigestible that an advocate, who, on the asking of Shri O.P. Arora, has drafted the pleadings contrary to the interest of the plaintiff and still the plaintiff has been taking his services and more interestingly, against the successorsininterest of Shri O.P. Arora. The plaintiff's taking the service of the abovenamed advocate clearly reveals that he was having full faith and trust on the said advocate since beginning i.e. filing of the suit against PNB and he has continued to take his services even thereafter.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. It is also interesting to note that it is candid case of the plaintiff that after expiry of the Lease Deed dated 15.11.1991, financial crisis of Shri O.P. Arora were over and he was the owner on the basis of Conveyance Deed and Lease Deed dated 06.04.1984, then why he has not filed suit against the PNB and why he has allowed his brother to file the suit against the PNB. It is the case of the plaintiff that he wants the possession of the suit property, then he ought to have filed the suit instead of Shri O.P. Arora. The theory which was propounded by the Plaintiff that Shri O.P. Arora has solely appointed the said advocate has also fallen flat on his face.
Now, coming to cases filed against the PNB Bank by S/Sh. O.P. Arora and M.L. Arora. The para no.1 of Ex.DW1/11 i.e. suit filed by Late Sh. O.P. Arora reveals that Sh. O.P. Arora has claimed himself to be the owner of Shop No. 128, Sarojini Nagar Market, New Delhi. Similarly, the perusal of the plaint Ex.PW1/D24 reveals that Sh. M.L. Arora (Plaintiff) has claimed himself to be the owner of first floor portion over the shop no. 128, Sarojini Nagar Market, New Delhi. The plaintiff, at the time of filing of the suit also, has categorically claimed himself to be the owner of only first floor portion over shop no. 128, Sarojini Nagar Market, New Delhi and he has not claimed any ownership right in the shop no. 128, Sarojini Nagar Market, New Delhi. The perusal of para no.1 of the application under Order 22 Rule 3 CPC filed by Defendants no. 1 to 3 (Ex.DW1/12) reveals that in the said application also, it was Suit No. 405/2017 Page 164 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. categorically mentioned that Late Shri O.P. Arora was the owner of shop no. 128, Sarojini Nagar Market, New Delhi. The defendants have filed the said application on 14.07.1998 and the said application was also filed through Counsel Sh. Yakesh Anand. There is no dispute that at that time also, he was representing the Plaintiff in another suit filed by the Plaintiff against the bank. It is also not disputed that in the suit filed by the Plaintiff and in the suit filed by Late Shri O.P. Arora, the application under Order 12 Rule 6 CPC was filed on 15.12.1998 and in the said application also, the respective parties have claimed their ownership for their own respective portions. There is no dispute between the parties that at that time also Sh. Yakesh Anand, Ld. Advocate was prosecuting the matter against PNB. Sh. Yakesh Anand Ld. Advocate had not only drafted the said suits but also the aforesaid applications. At the cost of repetition, the Plaintiff has categorically admitted in his suit only the ownership right in the first floor over the Shop no. 128, Sarojini Nagar Market, New Delhi and not in the suit property.
In view of the aforesaid facts and submission made by Ld. Counsel for the defendants, there is no merit in the submission of Ld. Counsel for the Plaintiff that the said Conveyance Deed and Lease Deed were not challenged under Section 31 of the Specific Relief Act, 1963 or that the said section has any applicability.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. The aforesaid conduct of the parties vividly, apparently and palpably reveals that post Award dated 25.09.1983, the parties have not only accepted the Award without any technicalities, protest and challenge but also acted in its true letter and spirit. Further, the parties have changed their status qua the joint properties in question. The suit property has always been treated as the property of Sh. O.P. Arora as his own property and the same was also endorsed by the Plaintiff by various letters written to PNB and also impliedly by means of suit filed by him against the PNB Bank.
There was nomination by three brothers to four brothersin law (Panchas) with respect to the joint family properties and the Panchas, after discussing individually and collectively, have pen down the Award. The four Panchas were none else but the brothers inlaws of the plaintiff and Late S/Shri B.K. Arora and O.P. Arora.
Suppose, the Panchas have not pendown the Award and they have orally given the information to the respective parties i.e. three brothers S/Sh. M.L. Arora, O.P. Arora and B.K. Arora in respect of rights of the parties in the joint family properties and thereafter, all the parties have not only accepted the said information, but also acted upon oral information, then the question arises whether the same would not be admissible in the eyes of law and more particularly, when the parties have changed their status and positions in the joint family properties and the answer is in positive.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. It is well settled law that oral partition of the properties is permissible in the eyes of law.
Even if there is no written Award in the present case, but plethora of documents would suggest that there was mutual family arrangement between the parties regarding the partition and the same was not only accepted but acted upon by all the parties. All the three brothers post Award has clearly changed their positions and status in the properties. They have acted as per the true letter and spirit of the Award without even pinpointing the technicalities and nittygritty of the said document.
The plaintiff started continuing his business at Shop no. 99, Ring Road Market, New Delhi and the Plaintiff has shown in the Income Tax records that entire assets of Arora Tailors and Drapers are taken under "mutual arrangement". The plaintiff not only demolished the internal wall of said property but joined the two shops. The shop nos.100 and 130, Ring Road Market New Delhi were merged together with shop no. 99. The same is also admitted by the Plaintiff in the crossexamination dated 09.11.2010. Smt. Prakashwati, motherinlaw of the plaintiff, is having the right, title and interest in Shop No.130.
The family of the plaintiff has shifted after giving flat in question to PNB. The plaintiff himself has been endorsing the fact by means of letters to PNB that Sh. O.P. Arora was the owner of shop no. 128, Sarojini Nagar Market, New Delhi i.e. Suit property.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. The plaintiff has also endorsed by means of pleading by filing the suit together that he has only the right over the shop no. 128, Sarojini Nagar Market, New Delhi, otherwise, in his suit, he ought to have claimed not only the right in the flat no. 128, Sarojini Nagar Market, New Delhi but also in the shop No. 128, Sarojini Nagar Market, New Delhi.
The Panchas, to whom the matter was referred, were closely related to three brothers and they were not the strangers to the family. They have acted as Panchas. The submission of Ld. Counsel for the defendants is correct that mere nomenclature of the document is not the decisive factor. Merely recording that the same was an "Award" does not change the character of the family partition which was arrived at between the parties and pen down by Panchas. The Panchas have talked individually and collectively with the parties i.e. three brothers and after talking individually and collectively, they have just written down the family partition which was orally agreed between the said brothers. The purchase of various stamp papers for Award, Relinquishment/Release Deed and Undertaking also point towards the family arrangement arrived between the three brothers prior to the Award and the same was formally penned down by Four Panchas given the nomenclature as Award.
Ld. Counsel for the defendants has relied upon judgment of Kale & Ors. Vs. Deputy Director of Consolidation and Ors Suit No. 405/2017 Page 168 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. (Supra). The para no. 9 of the said judgment is reproduced as under for apt understanding: "9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise "Kerr on fraud" at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus:
The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend.
The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create Suit No. 405/2017 Page 169 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "Family has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs. But even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successions so that future disputes are sealed forever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the Rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this Suit No. 405/2017 Page 170 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:
A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.
The agreement may be implied from an long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term family arrangement" is applied.
Family arrangements are governed by principles which are not applicable to dealings between strangers. The Court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements.
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Mohan Lal Arora V. Arun Arora & Anr.
Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
In the aforesaid judgment, it has been held that the Courts will lean in favour of a family arrangement instead of disturbing the same on the technical or trivial grounds. It is also held by the Hon'ble Supreme Court that the rule of estoppel be pressed into the service and is applied to shut out the plea of the person, who, being the party of the family arrangement to settle the dispute and claims to revoke the family arrangement through which he has himself enjoyed some material benefits.
The plaintiff has not only got the property bearing no. 99, Nauroji Nagar, New Delhi but also Flat no. 128, Sarojini Nagar Market, New Delhi (i.e. over and above the suit property in the said family arrangement), Shop at Prem Nagar and DDA - MIG Flat - (Booked only) but also an amount of Rs.40,000/ for Arora Tailors and Drapers. It is also relevant to look into Ex.DW1/4 (Ex.PW 1/D9), whereby, S/Sh. O.P. Arora and B.K. Arora have undertaken to pay an amount of Rs.40,000/ each to the plaintiff Sh. M.L. Arora.
Sh. O.P. Arora has undertaken that he will pay an amount of Rs.40,000/ by 30.11.1983 and Sh. B.K. Arora has undertaken to pay the amount of Rs.40,000/ by 30.12.1983 or on the arrangement of tailoring workshop, whichever is earlier. The said undertakings were confirmed and accepted by Sh. M.L. Arora.
This Court has already come to the conclusion that the said undertaking was proved on record. It is not the case of the plaintiff Suit No. 405/2017 Page 172 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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that the said amount was not received at any point of time. In case, the said amount was not paid to the plaintiff, the plaintiff ought to have made hue and cry at the relevant time. The defendants, by cogent and convincing evidence, have also proved on record that even the said amount was paid to the plaintiff, otherwise, the Plaintiff ought not to have allowed Shri O.P. Arora to execute Lease Deed dated 17.11.1983 and 15.11.1991 in favour of the PNB. It is also borne out of the record that at the time of executing the Lease Deed dated 17.11.1983, Sh.O.P. Arora must have also got three months' advance rental which comes to Rs.18,000/. It is not that Sh. O.P. Arora was not possessed the said amount. Further, at the relevant time, the wife of the Plaintiff was also earning handsomely.
The plaintiff has presented the case that as if, the plaintiff has done mercy on Late Sh. O.P. Arora but this Court has already held that from the childhood, Sh. O.P. Arora has helped his father in the commercial college business alongwith his elder brother Sh. B.K. Arora. After the death of Sh. Hans Raj Arora, S/Sh. O.P. Arora and B.K. Arora continued the commercial college business in the name of their mother i.e. Smt. Vidyawati and it is also categorically admitted by the plaintiff that the said business was done for his benefit also as he was minor at that point of time. Sh. O.P. Arora has contributed his valuable 2530 years in the said commercial college business. If, the case of the plaintiff is to be admitted, then, as per the plaintiff himself, Sh. O.P. Arora got only a way side Suit No. 405/2017 Page 173 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
platform i.e. property bearing no. 99, Nauroji Nagar, Ring Road Market, New Delhi and Sh. B.K. Arora got two valuable properties i.e. property bearing no. 197, Sarojini Nagar Market, New Delhi and Flat No. 110, Sarojini Nagar Market, New Delhi. Similarly, the plaintiff has not only got flat no. 128, Sarojini Nagar Market, New Delhi but shop no. 128, Sarojini Nagar Market, New Delhi also alongwith properties at Prem Nagar and booking the MIG Flat with DDA. As per the evidence on record, the plaintiff also got a sum of Rs.40,000/ each from S/Shri B.K.Arora and O.P.Arora. It is admitted case of the parties that suit property was not purchased by the Plaintiff i.e. it was not his own self owned property but the same was initially allotted in the name of his father i.e. Lala Hansraj Arora i.e. predecessor in interest of the parties.
This Court is of the considered view that it would tantamount to no distribution, what to speak off equal distribution for Sh. O.P. Arora, who has contributed to the joint family business for about 2530 years. The family arrangement, which was passed in the nature of Award by four Panchas, was, in fact, out of the discussion which was made by them with three brothers. It appears from the record that the parties have orally suggested the way out of distribution and it was penned down in the form of Award and the same is also supported from purchase of the stamp papers. The perusal of Relinquishment/Release Deed (Exhibit PW1/D21) reveals that the stamp paper was purchased by the Plaintiff even prior to Suit No. 405/2017 Page 174 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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even passing of the Award dated 25.09.1983. The reference letter dated 29.08.1983 also clearly reveals that that three brothers have undertaken that the decisions given by the PANCH will be legally and morally binding and final upon them and they will abide by all the decisions awarded by the PANCH, in toto. The aforesaid facts clearly reveal that the parties post Award dated 25.09.1983 have not only accepted morally but legally also without any demur, protest or challenge to the technicalities of the said Award and documents executed post Award. The Panchas, after discussing orally, individually and collectively with the three brothers, given their information regarding the aforesaid joint family properties to the parties through the writing of Award dated 25.09.1983 and the said information was duly accepted and acted upon by the parties.
In view of the aforesaid judgment of Kale and Ors. (Supra), the principle of estoppel clearly applies in the facts & circumstances of the present case. The parties cannot be allowed to unsettle the position, which has been settled long back by the parties and the parties have also changed their status qua the aforesaid properties.
The mere change in the records of Directorate of Estates regarding the property bearing no. 99, Ring Road Market, New Delhi by the defendants will not, in any way, change the settlement. The defendants have also explained the circumstances under which the same was done. Furthermore, even after the change the Plaintiff Suit No. 405/2017 Page 175 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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was in exclusive possession of the said property and he was running his business from the said premises.
The Ld. Counsel for the Plaintiff has also argued that even the sisters were not part & parcel of the family. The Panchas i.e. four brotherinlaws were noneelse but husbands of the four sisters. The plaintiff has nowhere presented the case that the said brother inlaws were having matrimonial dispute with their respective spouse i.e. sisters of Arora's family. It is borne out of the record that the sisters have always treated the suit property as the joint family properties of sons of Lala Hansraj Arora and they have not, at any point, laid any claim over the same. After the death of either Lala Hansraj Arora or Smt. Vidyawati, they have not laid any claim in the suit property rather they have voluntarily submitted the relevant documents for keeping the record straight so that the suit property shall remain part & parcel of Arora's family. Further, the four brotherinlaws came forward in order to resolve and ironing the crease of disputes, if any, between the three brothers. It is also relevant to note the following para of the Award dated 25.09.1983: "...It is worth mentioning that this family has been continuously running their business in a dignified manner since they established their business after the partition of the country and they have brought dignity to the family under the kind guidance of their elders......"
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The said argument of Ld. Counsel for Plaintiff also sans merit and the same is hereby rejected. In terms of the aforesaid judgment, the plaintiff cannot be allowed to challenge those documents even on the ground of technicalities and at the cost of repetition, the rule of principle of is pressed into service.
The Ld. Counsel for the defendants has argued that even assuming for the sake of arguments that the Award and Relinquishment Deed require registration, still in terms of Section 49 of the Indian Registration Act, this Court can always look into the said documents for collateral purpose. The Ld. Counsel for the defendants is correct that even if, the said documents require compulsory registration, still the same can be looked for collateral purpose. However, for looking the said documents for collateral purpose, the said documents are required to be duly stamped as the Plaintiff has objected regarding the deficient stamp duty on the Award dated 25.09.1983 (Exhibit DW1/3) and Relinquishment/Release Deed dated (Ex. PW1/D21). This Court has interalia passed the following Order dated 27.07.2019: "...The defendant no.2 has filed an application under Section 151 CPC for appropriate directions in respect of the objections taken by the plaintiff in the following documents:
i) Letter dated 29.08.1983, Ex.PW1/D4
ii) The document/Award Ex.DW1/3 dated
25.09.1983
iii) The Relinquishment/ Release Deed,
Ex.PW1/D21 (earlier mark Z).
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr.
Ld. Counsel for the plaintiff fairly submits that as far as the letter dated 29.08.1983 Ex.PW1/D4, the same does not require any registration and payment of stamp duty and therefore, the said objection is waived off by the plaintiff. It is also contended by Ld. Counsel for the plaintiff that in case, the Court finally comes to the conclusion that the documents Ex.DW1/3 dated 25.09.1983 and Relinquishment Deed/ Release Deed Ex.PW1/D21 require the deficient stamp duty, then the appropriate directions can be passed in the final judgment and the said documents can be read as far as stamp duty is concerned at this stage. However, subject to compliance by the defendants to the directions passed by the Court in the final judgment for payment of stamp duty."
The Ld. Counsel for defendants has submitted that defendants are ready to pay the deficient stamp duty, however, the plaintiff has not pointedout what is the deficient stamp duty on the said documents. Although, the plaintiff has not come out with amount of deficient stamp duty but the bare perusal of the aforesaid documents reveals that there is deficiency of stamp duty. If, the court has to even consider for collateral purpose under Section 49 of the Indian Registration Act or the Award is to be looked into for the purpose of defence, still the deficiency has to be made good. Accordingly, this Court will pass the following directions in this respect:
1) The Ahlmad of this Court will send Award (Ex.DW1/3) dated 25.09.1983 and the Relinquishment/Release Deed (Ex.PW1/D21) to the concerned SDM/Collector within 10 days from this Judgment. The Ahlmad shall retain its True Suit No. 405/2017 Page 178 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. Attested Copy under the signature and endorsement of the Court so that the said True Attested Copy can be referred in future till the originals of the said documents are not received.
2) The concerned SDM/Collector shall assess the deficient stamp duty, which was required to be paid on the said documents, at the relevant time i.e. on 25.09.1983 and in the year 1983 respectively. The SDM/Collector shall also assess the penalty, if any, on the said documents which are required to be paid. The concerned SDM/Collector shall do the needful within the period of 10 days from receipt of the said documents. The SDM/Collector concerned shall intimate through Registered/Speed Post its decision to defendants No.2 and 3 as well as this Court within a period of three days from the said decision. The defendants No.2 and 3 are also given the liberty to follow up the matter with concerned SDM/Collector.
3) The defendants No.2 and 3 are directed to make the deficiency of stamp duty and penalty, if any, within a period of 10 days from receipt of the aforesaid decision. After compliance of the said decision, the concerned SDM/Collector after making endorsement thereof regarding payment of deficient stamp duty and penalty, if any, shall send back the aforesaid original documents to this Court.
Subject to the aforesaid directions, the aforesaid documents can also be read for collateral purposes, even if, it is assumed for the sake of arguments that the same requires registration, however, this Court has held hereinabove that the said documents do not require any registration for the reasons mentioned hereinabove.
There is another aspect of the matter. The defendants have argued that even though, the Award dated 25.09.1983 was not Suit No. 405/2017 Page 179 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. made rule of the Court, still, it can be looked into for the purpose of defence. The Ld. Counsel for the Plaintiff has argued that defendants have relied upon para no.9 of the Judgment of Satish Kumar & Ors. V/s Surinder Kumar & Ors. (supra) and in the said para, the Hon'ble Supreme Court has only referred to an unreported judgment of Hon'ble Supreme Court.
With due respect, the doctrine of precedent will not change. The Hon'ble Supreme Court has quoted with approval the said unreported Judgment and it is, nowhere, held by Hon'ble Supreme Court that the said precedent in the unreported Judgment is not sustainable in the eyes of law. The defendants have also cited various judgments in respect of the same. The ratio and proposition of the said judgments is also squarely applicable to the present case. The defendants, as a defence, can always set up the said Award, although, it has not been made as a rule of Court. Therefore, the Award can be set up as shield but not the sword. The Plaintiff has not been able to rebut the said principle of law.
The Ld. Counsel for Plaintiff in the rebuttal arguments on be half of the plaintiff has also argued that if the case of the defen dants will be accepted, then the same will be barred under the Be nami Transactions Act and further, for Benami properties, the pre decessor in interest ought to have shown the suit property as Be nami in the Income Tax records. The Ld. Counsel for the defendants has rebutted the said arguments with the following submissions: Suit No. 405/2017 Page 180 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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(a) The above contention is beyond pleadings and evidence.
(b) Without prejudice to the foregoing, even otherwise the properties held in the name of members of Joint Hindu Family are not a benami properties but properties acquired from common funds for the benefit of family and in which all members have equal interest. Nor it becomes benami in consequence of partition which on its having been accepted and acted upon creates binding effect on the parties even if it is done orally or by unregistered documents who by doctrine of estoppel are debarred from pleading contrary and creates vested right in the parties in respect of their respective shares. This position is also made evident by section 48 of the registrations Act.
(c) Moreover, when a member of family on its partition gets a property as his share it is not that he is getting and holding it by virtue consideration provided by someone else and the existence of the name of a member in the registered document only reflects the position prior to partition and not any transfer in his name of the property to be held benami by consideration provided by the member who got it as his share and in fact the distribution of the properties on partition does not involve transfer of interest but only concretization of the interest that already exists.
(d) The Ld. Counsel for the Plaintiff without specifying, which provision of the Income Tax Act stipulated the said requirement has vaguely mentioned, perhaps it was section 271(A) or (D) of the Income Tax Act. Section 271 does not stipulate any such requirement but mandates that income should be filed accurately and without concealment. Thus, the return filed by the Late Sh. O.P. Arora from financial year 198384 in respect of the income of business of commercial college and rental income of the suit property was in due compliance of the law because from the above financial year Suit No. 405/2017 Page 181 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. upon the distribution of the joint properties and businesses they had become his individual business and property. That, the income there from had become his individual income and the same was accordingly accounted for in his income tax returns ensuring the compliance of the prevailing law.
The Plaintiff, at no point of time, has raised the issue of Benami Transaction Act during framing of issues and even no evidence has been led by the Plaintiff. It is for the first time that the said issue was raised in the rebuttal arguments. This Court has dealt in detail the issue of joint family properties, family arrangement, acceptance and acting upon the said arrangement and Rule of Estoppel. Further, I am completely in agreement with the aforesaid arguments of Ld. Counsel for the defendants that there was no question of the application of any of the provision of Benami Transaction Act in the facts and circumstances of the present case and the said argument of the Plaintiff also sans merit and the same is hereby rejected.
As discussed hereinabove, the plaintiff is not the owner of the suit property and Sh. O.P. Arora and after his death, his descen dants i.e. defendants have right, title and interest in the suit prop erty, therefore, the plaintiff has no right to claim any amount either on account of the amount, as claimed in Suit No.408/2017 or to wards arrears of mesne profits or pendentlite and future mesne profits.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. Accordingly, in view of discussions as made hereinabove, Is sues No.1, 2, 6 and 9 to 12, as framed in Suit No.405/2017 and Is sues No.1 to 3 and Issues No.8 to 11, as framed in Suit No.408/2017, are decided in favour of the defendants and against the Plaintiff in the aforesaid terms.
ISSUES NO.3, 4 AND 8 AS FRAMED IN SUIT NO.405/2017
3. Whether the suit is not maintainable in view of Section 53A of the Transfer of Property Act, in view of the position explained in preliminary objection No.2 of the written statement?
4. Whether the defendants have otherwise become owner of the suit property by way of adverse possession? OPD.
8. Whether the suit is barred by limitation? OPD.
ISSUES NO.4 AND 13 AS FRAMED IN SUIT NO.408/2017
4. Whether the claim of the plaintiff with regard to the amount in suit is not maintainable especially when the amount in suit was directed by the Hon'ble High Court of Delhi on 3.5.2000 to be paid by the Punjab National Bank to these defendants? OPD
13. Whether the defendants have acquired ownership of the suit property by way of adverse possession as alleged in para 7 of the preliminary objections in their written statement? OPD The issue i.e. whether the suit is barred by Law of Limitation, as framed in Suit No.405/2017 is actually related to the question of adverse possession. In view of the discussions, as made herein above, in respect of Issues No.1, 2, 6 and 9 to 12, as framed in Suit Suit No. 405/2017 Page 183 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. No.405/2017 and Issues No.1 to 3 and Issues No.8 to 11, as framed in Suit No.408/2017, the aforesaid Issues No.3, 4 and 8, as framed in Suit No.405/2017 and Issues No.4 and 13, as framed in Suit No.408/2017, become redundant and the same are accordingly, struck off in terms of the provision of Order 14 Rule 5 CPC. ISSUES NO.1 AS FRAMED IN CS NO.407/2017 (DEFENDANTS SUIT OF SANTOSH ARORA AND ANR.)
1. Whether the plaintiffs are entitled to the relief of injunctions as prayed for? OPP The Ld. Counsel for Plaintiff (Sh. M.L. Arora) has argued that the suit of the defendants is liable to be dismissed on the grounds mentioned in the Lead Suit as he is absolute owner of the suit prop erty.
ARGUMENTS OF DEFENDANTS
1) The possession of the suit property i.e. entire ground floor shop 128 (including back courtyard) was handed over by the PNB to the defendants on 10.05.2001, is an undisputed fact. However, instead of acting lawfully the Plaintiff started ha rassing and threatening the defendants so much so that these defendants were left with no option but to file suit for perma nent and mandatory injunction against the plaintiff on 05.03.2002.
2) Vide order dated 11.03.2002 the Hon'ble Court allowed both the parties to use courtyard and toilet jointly till the disposal of the application under order 39 Rule 1 and 2. The Hon'ble Court also appointed a L.C. to inspect the premises and file Suit No. 405/2017 Page 184 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. status report. The ld. L.C. inspected the premises and filed its report on 13.03.2002.
3) The Plaintiff in his written statement pleaded (in para 34, page 14) that "..there is no question of defendant no 1 (plain tiff) causing any obstruction in the use of toilet and water tap by the plaintiffs, as the plaintiffs had already on 13.05.2001 put a partition and rolling shutter between Shop and rear courtyard and had delivered possession of the entire court yard to the defendant no 1." He further pleaded in his written statement (internal page 9, Para 23,) that "..since the dispute related to the family members, some wellwishers and market association leaders prevailed upon the plaintiffs (defendants) that they should restore the same position as existed prior to letting out the entire property to Punjab National Bank in or der to establish goodwill. It is in these circumstances that sometimes in June 2001 the plaintiffs (defendants) gave pos session of the rear open courtyard of the shop to the defen dant no 1"
4) The aforesaid defense/stand taken by the Plaintiff is not only selfcontradictory, but in the facts and circumstances of the case also defies all logic. It may kindly be seen that the defen dants are the owners of the suit property and had obtained the possession of the suit property by defeating the Appeal of PNB (RFA 438/99) and also the aforesaid unwarranted ma nipulation of the plaintiff. Consequently, it may become evi dent there would arise no justifiable reason that the plaintiffs (defendants) would give the backcourtyard portion of the suit property, which forms a very substantial and integral part of their shop (the suit property). It is submitted that the water and toilet facility of the shop also exists in the said portion and this would further bear out that the aforesaid claim of the plaintiff is another falsehood stated by him.
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5) The case of the plaintiff allegedly is that the said portion was given to him because of some intervention of certain well wishers and market association leaders and they allegedly so advised and the defendants handed over possession of the back courtyard to the plaintiff to establish goodwill. It is sub mitted that plaintiff has not produced any such wellwisher as witness in this regard. Further, it is but logical that the ques tion of giving such substantial part of the suit property/shop by the defendants could only arise only as quid pro quo, which is none also proves the falsity of the above allegations of the plaintiff and they are completely baseless. This is also made evident by the fact that the suit for possession i.e. lead suit is filed for the entire suit property including the back court yard and it is stated by the plaintiff that it is being filed for the entire suit property allegedly by way of precaution while the back courtyard allegedly has been given by the de fendants to the plaintiff and it could be seen that it is com pletely disingenuous, illogical, absurd and not tenable in any manner but another reckless false hood on his part. It is also noteworthy that it is alleged by the plaintiff that the said por tion was given by the defendants to the plaintiff because the tailoring workshop was existing in the said portion before the property was given on rent to PNB and to restore the same status. In view of the above position, it may kindly be seen said contention is utterly senseless coupled with the fact that the tailoring workshop was existing in the back court yard as long as the set up was joint and in 1983, subsequent to the settlement/division of the properties in 1983, it was shifted from there so that Sh. O.P. Arora could fully enjoy the suit property that had become his property in view of aforesaid family settlement. Subsequently, Sh. O.P. Arora gave the en tire suit property on rent to PNB vide lease deed dated 17.11.1983. These facts may further bear out that the allega tions of the defendant are completely meritless and false.
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6) The LC was appointed in the matter and from the report of Ld. LC it may be evident that the backcourt yard is mainly open and there also exists toilet and water facility. The defendants have put up a rolling shutter that provides access from front side of the shop to the court yard including the above facilities and the said rolling shutter was found jammed from other side/outside and was got opened by the Ld. LC. Besides, with a view to create false evidence the plaintiff had before the ar rival of LC also dumped certain items in the small room in the said portion by removing the lock of the plaintiffs and had put his similar lock. The LC report dated 13.03.2002 that "a freshly painted Board was also found in the room which ap peared to have been placed before my arrival as it seemed out of place".
7) The defendants have categorically denied that they had handed over back portion of the Shop 128 (suit property) to the Plaintiff and which may be duly demonstrated by each of the facts submitted above and yet the plaintiff illegally got into the small room in breach even of the status quo order passed in the matter, besides stating the falsehood that the defen dants had handed over the possession to him. This is demon strated by all the above facts including the manner in which the things were found to be dumped into the said small room, which room is otherwise also liable to be demolished. These facts thus not only establish the authenticity of the present suit of the defendants and the relief prayed for therein but also that the plaintiff by illegally occupying the said room by getting into it as aforesaid has caused grave harassment and prejudice to the defendants including that the defendants have been disabled from carrying out its demolition that is needed to be carried out.
8) In the above facts and circumstances, the Court may be pleased to penalize the plaintiff for contempt of court and may also be pleased to evict the plaintiff from the said room and Suit No. 405/2017 Page 187 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. court yard and restore the status quo ante by passing the needful orders. The contemnor cannot be allowed to take un fair advantage of his mischief is also a well settled legal posi tion The Court may also be pleased to restrain the defendant by passing the injunction orders prayed for by the plaintiffs in this suit.
FINDINGS AND CONCLUSIONS OF THE COURT The perusal of record reveals that in the year 1999, after the death of Late Shri O.P. Arora, the plaintiff has started asserting his own right in the Shop No.128, Sarojini Nagar Market, New Delhi. The Plaintiff has also filed suit for recovery and mandatory injunc tion against the defendants in the year 2000. There were various letters, legal notices and replies exchanged between the parties from 1999 to 2002. The parties were vociferously and vigorously ag itating their claims in the said property which includes the back/rear portion i.e. courtyard. It is highly unimaginable and un thinkable that the defendants would voluntarily and that too on, the asking of the so called wellwishers of the market would surren der and handover the possession of the rear courtyard portion to the plaintiff and that too, without even written documents in the nature of compromise deed/joint application when the litigation was pending between the parties. If, the alleged compromise was to arrive between the parties, at that time, then the same ought to have not only on the written agreement/compromise but also after settling and burying the entire disputes between the parties with the legal advice of the counsel for the parties who was representing Suit No. 405/2017 Page 188 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. the respective parties at the relevant time. The connotation of com promise generally includes giving and taking and it could not tanta mount to only giving. The defendants, after long drawn battle with PNB, got back the possession of the said property, which includes the courtyard/rear portion and it cannot be expected of the normal prudent person to handover to the plaintiff who had not only writ ten letters to PNB but also filed an application for impleadment in the Regular First Appeal filed by the PNB for claiming the owner ship rights in the suit property. Thereafter, he also filed the suit for mandatory injunction basically claiming the relief of possession of the said property.
The theory, which was propounded by the plaintiff regarding handingover of the possession of back/court yard portion voluntar ily by the defendants, is blatantly and manifestly absurd and defies all human logic and the same is even beyond the figment of any imagination. The status quo Order was passed on 11/03/2002 re garding the room in the courtyard and both the parties were al lowed to use the toilet on the courtyard. Ld. The Local Commis sioner was appointed and she has given report dated 13.3.2002. The operative portion of the report is reproduced as under: "....And whereas on inspection it revealed the Plaintiff (Smt. Santosh Arora and Anr.) is in possession, use and control of the open courtyard on the ground floor of the suit premises marked "C" and the store room appeared to be used by the defendant (Sh. M.L. Arora)...."
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. With respect to the store room, it is pointed by the LC in her report that a freshly painted board was also found in the room which appeared to have been placed before her arrival as it seemed out of place. It is palpable that the Plaintiff has tried to take advan tage of the order dated 11.03.2002, whereby, he was also allowed to use the toilet in the open courtyard which was having also having one room/store room.
Keeping in view of the conduct of the plaintiff, in the present case as well as entire facts and circumstances of the present case, it appears to the Court that in order to take the advantage of Status quo Order dated 11.03.2002, the plaintiff has placed its article in side the store room and to show his possession, which, otherwise, was taken by the defendants from the PNB on 10.05.2001.
The provision under Order 39 Rule 2A CPC does not provide for restoration of status quo ante and no such application has been moved in the present case by the defendants (Smt. Santosh Arora and Ors.). However, it is well settled that the Court is empowered to restore back the status quo ante while exercising the powers under Section 151 CPC.
The plaintiff (M.L. Arora) is directed to remove his lock and material/articles from the room/store room as mentioned in the LC report in back courtyard portion of Shop No.128, Sarojini Nagar Market, New Delhi within a period of 30 days from passing of this Judgment and immediately thereafter, the defendants (i.e. S/Shri Suit No. 405/2017 Page 190 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. Tarun Arora and Arun Arora) are permitted to put theirs locks in the said room. The Ld. LC has also filed the site plan and depicted the said room in the said site plan.
The defendants (i.e. Smt. Santosh Arora and Anr.) has also sought a decree for mandatory injunction directing the Plaintiff (Shri M.L. Arora) to remove the obstruction, created by him in the steel rolling shutter on point 'B' fixed on the back side has already been granted vide order dated 11.03.2002 and the same has al ready been removed by the Ld. LC.
The defendants i.e. S/Sh. Tarun Arora and Arun Arora are also entitled to reliefs, which are mentioned hereinbelow under the heading 'Relief'. Accordingly, Issue No.1, as framed in CS No.407/2017, in decided in favour of the defendants (S/Sh. Tarun Arora and Arun Arora) and against the Plaintiff (Sh. M.L. Arora) in the aforesaid terms.
DIRECTIONS IN RESPECT OF PROPERTY NO. 99, NAUROJI NA GAR, RING ROAD MARKET, NEW DELHI AND THE APPLICA TION UNDER SECTION 340 CRPC FILED BY DEFENDANTS This Court has held that the Plaintiff is having the right, title and interest in the property bearing No.99, Nauroji Nagar, Ring Road Market, New Delhi and keys of the said premises were taken by the defendants, during the pendency of the case without preju dice to their rights and contentions of the parties. The defendants No.2 and 3 are directed to deposit the keys of property bearing Suit No. 405/2017 Page 191 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. No.99, Nauroji Nagar, Ring Road Market, New Delhi within a period of thirty days from passing of this Judgment.
The application under Section 340 Cr.P.C. filed by the defen dants is also pending for consideration in the present case. The Ld. Counsel for the defendants has argued that the plaintiff ought to give his apology to the Court. It is further argued that the process of law is meant to be used for administration of justice and not for abusing the same to make illegal grabbing and subvert justice on the basis of contumacious lies and playing fraud on the Court.
This Court has already held that the Plaintiff has not come with clean hands and is guilty of suppression of material facts. The Plaintiff has also abuse the process of Court and on account of his acts, deeds and conduct, this Court wants to impose exemplary costs upon the Plaintiff.
I have profit to refer para no.13 of the Judgment of Hon'ble High Court passed in RFA Nos. 45/2018 & 48/2018 decided on 1st February, 2018 titled as Vijay Kumar Versus Varun Khullar & Anr. in which Hon'ble High Court has observed as under: "13. In view of the above, and more so because in the opinion of this Court, this Court was misled in calling for trial court record on the ground that no dates were fixed for evidence of the counterclaimant and counterclaimant had not led evidence, accordingly, these appeals are dismissed with costs of Rs.2,50,000/. Costs will be deposited by the appellant/defendant no.2/counterclaimant with the Suit No. 405/2017 Page 192 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. website www.bharatkeveer.gov.in. Costs are imposed for wasting judicial time as also for abuse of process of law by misleading the Court by noting that the costs which are imposed under Section 35 CPC are costs which are given in favour of a party to a litigation and imposing of costs for abuse of judicial process and misleading the Court will be governed by the provision of Section 151 CPC and therefore exercising such powers costs have been imposed upon the appellant/defendant no.2/counterclaimant. Costs shall be deposited within six weeks from today and affidavit be filed of compliance within two weeks thereafter failing which Registry will list the matter in the Court for taking appropriate action against the appellant/defendant no.2/counterclaimant."
The Plaintiff is burdened with cost of Rs.2,50,000/ to be paid to the PM CARES Fund. The plaintiff is granted thirty days to de posit the same. The keys of property bearing No.99, Nauroji Nagar, Ring Road Market, New Delhi will be handedover to the Plaintiff only after furnishing the receipt of the said cost. The application under Section 340 Cr.P.C. filed by the defendants is disposed off in the aforesaid terms.
RELIEF From the discussions, as adumbrated hereinabove, I hereby pass the following FINAL ORDER
(a) The CS No.405/2017 and CS No.408/17 filed by the Plaintiff is dismissed.
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(b) The plaintiff (M.L. Arora) is directed to remove his lock and material/articles from the room/store room as mentioned in the LC report in back courtyard portion of Shop No.128, Saro jini Nagar Market, New Delhi within a period of 30 days from passing of this Judgment and immediately thereafter, the de fendants (i.e.Tarun Arora and Arun Arora) are permitted to put theirs locks in the said room. The LC has also filed the site plan and depicted the said room in the said site plan. The said room is also depicted in the Site Plan (Ex.PW4/21).
(c) The defendants No.2 and 3 are directed to deposit the keys of property bearing No.99, Nauroji Nagar, Ring Road Market, New Delhi within a period of thirty days from passing of this Judgment.
(d) The Plaintiff is burdened with cost of Rs.2,50,000/ to be paid to the PM CARES Fund. The plaintiff is granted thirty days to deposit the same. The keys of property bearing No.99, Nauroji Nagar, Ring Road Market, New Delhi will be handed over to the Plaintiff only after furnishing the receipt of the said cost.
(e) The CS No.407/2017 filed by the defendants [i.e. Smt. San tosh Arora and Anr. Vs. M.L. Arora and Anr.] is decreed in the following terms:
(i) A decree for permanent injunction is passed in favour of the defendants (i.e.S/Sh.Tarun Arora and Arun Arora) and against the Plaintiff (Shri M.L.Arora), his agent, Suit No. 405/2017 Page 194 of 196 Suit No. 408/2017 Suit No. 407/2017 Mohan Lal Arora V. Santosh Arora & Ors.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. attorneys, servants, representatives and assignees, restraining them from dispossessing the defendants (i.e. S/Sh.Tarun Arora and Arun Arora) from the entire Ground Floor i.e. Shop which includes the Rear Courtyard, Store Room/Room (after receiving the possession) and Toilet of the property bearing no. 128, Sarojini Nagar Market, New Delhi more particularly shown red colour in the Site Plan Ex.PW4/21.
(ii) A decree for permanent injunction is also passed in favour of the defendants (i.e.S/Sh.Tarun Arora and Arun Arora) and against the Plaintiff (Sh. M.L.Arora) from transferring, alienating or creating third party interest in entire Ground Floor i.e. Shop which includes the Rear Courtyard of the property bearing no. 128, Sarojini Nagar Market, New Delhi more particularly shown red colour in the Site Plan Ex.PW4/21.
(f) In view of the aforesaid Judgment, all other pending applica tions filed by the respective parties become infructuous and disposed off accordingly.
This Judgment is prepared and signed in three sets. The sec ond set and third set of Judgment be kept in CS No.407/2017 and CS No.408/2017.
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Santosh Arora & Anr. Vs. Mohan Lal Arora & Anr. Accordingly, Separate Decree sheets be prepared in the suits, in terms of this decision.
Files of all three suits be consigned to Record Room after due compliance.
Announced in the open Court on this 30th Day of January 2021.
(ARUN SUKHIJA)
ADJ07 (Central)
Tis Hazari Courts, Delhi
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