Delhi District Court
Hira Lal/Jawahar Lal vs Shiv Varan on 24 May, 2024
IN THE COURT OF MS. MANU VEDWAN,
DISTRICT JUDGE-2, NORTH EAST DISTRICT, KARKARDOOMA
COURTS, DELHI
CS No. 06/2016
CNR No. DLNE01-000011-2016
1. Hira Lal
Through his legal representatives:-
i. Nirpatti Devi
W/o Late Hira Lal
ii. Mahesh Kumar
S/o Late Hira Lal
iii. Ramesh Kumar
S/o Late Hira Lal
iv. Sangeeta Devi
W/o Late Suresh Kumar
(pre deceased son of Late Hira Lal)
v. Master Dherender Pratap
Minor son of Late Suresh Kumar
(pre deceased son of Late Hira Lal)
vi. Angel
Minor daughter of Late Suresh Kumar
(pre deceased son of Late Hira Lal)
All residents of House No. 108,
Street no. 7, Block-D,
Dayalpur, Delhi.
2. Jawahar Lal
S/o Late Ramnath @ Nathai Kewat
R/o House No. 108, Street No. 7,
Block-D, Dayalpur, Delhi. .....Plaintiffs
CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 1 of 23
Versus
1. Shiv Varan
S/o Late Ramnath @ Nathai Kewat
2. Subhagi Devi
W/o Sh. Shiv Varan
Both residents of House No. 108, Street No. 7,
Block-D, Dayalpur, Delhi. .....Defendants
Date of Institution : 04.01.2016
Date of Reserving Judgment : 24.05.2024
Date of Judgment : 24.05.2024
JUDGMENT
1. The present suit has been filed by the plaintiffs against the defendants seeking the decree of declaration, cancellation of documents, partition and permanent injunction.
Amended Plaint
2. To start with, it needs to be mentioned that in view of the order dated 20.08.2016, the application of plaintiff filed under Order VI Rule 17 of Code of Civil Procedure was allowed and subsequently amended plaint was taken on record. It is stated in the amended plaint that the plaintiffs and defendant number 1 are real brothers and are joint and equal owners of property bearing number A-41, Gali number 2, Braham Puri, Delhi, ad- measuring 100 square yards (hereinafter referred to as suit property). Defendant number 2 is wife of defendant number 1. It is further stated that CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 2 of 23 the suit property was purchased by plaintiffs and defendant number 1 jointly on 26.02.1991, from Smt. Ramwati W/o Shri Jai Ram Verma and Smt. Dhanwati Devi W/o Shri Daya Shankar vide General Power of Attorney, agreement to sell, affidavits, cash receipt and registered Wills, all dated 26.02.1991. It is further stated that at the time of purchasing of suit property it was decided that the originals of all the abovesaid documents would be kept in safe custody of defendant number 1 as he was the eldest amongst the brothers. It is further stated that the plaintiffs and their family members are also residing and in possession of suit property except one shop having rolling shutter in the front side of the said property ad- measuring 8'x10' which is in possession of defendant number 1. It is further stated that the plaintiffs alongwith defendant number 1 had come in possession of suit property only on the strength of aforesaid documents, which were executed in their favour by Smt. Ramvati and Dhanwati vide its registration number 4815, book number 3, volume number 337, pages 125 and registration number 4816, book number 3, volume number 337, pages 126 respectively. It is further stated that since then plaintiffs have been in settled, continuous, uninterrupted and peaceful possession of the suit property.
It is further stated that on the basis of aforesaid documents of ownership name of plaintiff number 1 was entered into list maintained by the department of Delhi Jal Board and he got the water connection in his name. The name of plaintiff number 1 was also mentioned in the records of House Tax department. Even the Life Insurance Corporation policy which was taken by plaintiff number 1 qua his life, carried the address of suit property. It is further stated that in the bank account as well as on the identity card address of plaintiff is of suit property. In addition to it, the address of suit property is mentioned in the ration card which is in the name of plaintiff number 1. It is further stated that the General Power of CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 3 of 23 Attorney, agreement to sell, affidavit and receipt, all dated 26.02.1991, without Wills which were filed by defendant number 1 are basically the photocopied and unregistered documents. It is further stated that moreover these abovesaid unregistered documents are of the same date that is the date on which the documents of plaintiffs were executed that is 26.02.1991. Even the stamp papers on which the documents were executed were of the same number. It is further stated that the forgery and fabrication is further fortified from the fact that in the documents filed by defendant number 1, content is the same only the names of plaintiffs were omitted. It is further stated that on the basis of abovesaid forged and fabricated documents, defendant number 1 had got executed a sale deed, dated 16.03.2006, in favour of his wife Smt. Subhagi Devi that is defendant number 2 herein. It is further stated that the sale deed which was executed by defendant number 1 in favour of his wife is bad in law as the rights, title and interest in the immovable property could only be created, transferred, assigned by the registered documents.
It is further stated that in other words, the documents are required to be registered compulsorily, which purport or operate to create, declare, assign, limit or extinguish, whether present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property. Consequently, the sale deed dated 16.03.2006, executed on the strength of unregistered, forged and fabricated documents is also null and void. It is further stated that on 28.11.2015, plaintiffs and their family members who are residing in the suit property saw that 2-3 persons were standing in front of the suit property and inspected it. It is further stated that upon enquiries made by the plaintiffs, it was told that they were interested in purchasing the suit property. It is further stated that after hearing this, plaintiffs told them that they were the co-owners who are in possession of the said property and CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 4 of 23 they had no intentions of selling the said property. It is further stated that these persons told the plaintiffs that the defendant number 1 had presented before them that defendant number 2 is the owner of the suit property. It is further stated that thereafter the plaintiffs had approached the defendant number I number of times and requested the defendant number I to join plaintiffs in seeking the partition by metes and bounds of the suit property as the plaintiffs would not continue with the defendant number I. It is further stated that the defendant number 1, instead of, stepping forward rather signified his reluctance to partition the suit property and started quarrelling with the plaintiffs. It is further stated that on 09.12.2015, again four persons came at the suit property and told the plaintiffs and their family members that they were purchasing the suit property from it's owners that are defendant number 1 and defendant number 2. It is further stated that thereafter plaintiffs once again approached the defendant number 1 on 10.12.2015, and requested him to join them in seeking partition of the suit property and/or alternatively offered to buy 1/3rd share of defendant number 1 as it was not possible to partition the said property by metes and bounds but defendant number 1 again flatly refused to do so. It is further stated that the plaintiffs despite their best efforts could not make the defendant number I agree to the partition of the suit property. It is further stated that the plaintiffs are under the apprehension that the defendants may sell the suit property or create third party interest with the help and support of the goonda elements without the consent and permission of plaintiffs who are joint/equal owners of the same. It is further stated that the plaintiffs and defendant number 1 had equal shares that is 1/3 rd each and are in lawful and physical possession of suit property as till date the same is not partitioned by metes and bounds. It is therefore requested that decree of declaration, cancellation, a preliminary decree alongwith final decree of partition and CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 5 of 23 decree of permanent injunction be passed with respect to suit property.
Amended common written statement
3. On the other hand in the amended common written statement filed by both the defendants, apart from denying the allegations/contentions of plaintiffs, it is stated by the defendants that the suit of plaintiff is not maintainable as the property in question was purchased by defendant number 1 Sh. Shiv Varan S/o Sh. Ramnath, on 26.02.1991 from Smt. Ramwait W/o Sh. Jai Ram Verma R/o A-96, Gali number 1, Ram Das Gali, Brahmpuri, Shahdara, Delhi and Smt. Dhanwati W/o Sh. Daya Shankar R/o D-90, New Seelampur, Shahdara, Delhi by way of General Power of Attorney and other sale documents. It is stated that defendant number 1 then sold the aforesaid property to defendant number 2 Smt. Subhagi Devi, on 16.03.2006 by way of sale deed in the sum of rupees 2,00,000/- which was duly registered before the Sub Registrar-IV, Seelampur, Delhi. It is further stated that the property was mutated in favour of defendant number 2 in the year 2007 and water connection was also renamed in the name of defendant number 2. It is further stated that the suit of plaintiff is not maintainable and barred by limitation as such the property was transferred in the name of defendant number 2, on 16.03.2006. It is further stated that plaintiffs have no locus standi to file the present suit on the basis of forged and fabricated photocopied documents that is General Power of Attorney, dated 26.02.1991 allegedly executed Smt. Ramwati and Smt. Dhanwati in favour of plaintiffs on the same day on which two ladies had executed the General Power of Attorney in favour of defendant number 1.
It is further stated that Sh. Heera Lal and Sh. Jawahar Lal had never expressed their rights over the suit property before the filing of the present plaint. It is further stated that out of sudden on 09.09.2015, plaintiffs alongwith their wives came and barged into the suit property forcibly CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 6 of 23 without any authority. It is further stated that defendants called the police for forcible and illegal possession over the suit property by the plaintiffs, but, no action was taken by the police. It is further stated that Smt. Savitri Devi had started illegally residing in the suit property but, later on because of disconnection of electricity meter, she had also vacated the suit property. It is further stated that it is also not understandable that when plaintiffs had allegedly claimed to purchase the suit property in the year 1991, why they had claimed the possession after the passage of such a long time? It is further stated that in view of section 17 of Registration Act and section 35 of the Indian Stamp Act the documents relied upon by the plaintiffs are not relevant. It is further stated that the plaintiffs are making false claim/averments that the original documents are in the possession of defendant number 1 as the documents relied upon by them are forged and fabricated. It is further stated that the father of defendant number 1, Late Ramnath was having licence number 199/1972 of Kerosene Oil issued by the Food and Supply Department, North East Delhi and the concerned shop used to be run by the defendant number 1. Alongwith that, defendant number 1 used to run a small factory for manufacturing of electrical MCB box since 2005. Machines, appliances and other manufacturing materials of defendant number 1 were kept lying in the suit property. It is further stated that since the suit property is owned by defendant number 2 by way of registered sale deed, there is no question of partitioning the same. It is therefore requested that the suit of the plaintiff be dismissed.
Replication
4. Replication to the written statement of defendants was filed which is essentially a reiteration of the averments in the plaint and denial of contentions in the written statement.
CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 7 of 23 Issues
5. On the basis of pleadings, the following issues were framed:-
(i) Whether the suit of the plaintiffs are barred by limitation? OPD
(ii) Whether the suit of the plaintiffs has not properly valued for the purpose of court fees? OPD
(iii) Whether the plaintiffs are the co-owners of the suit property or the defendant number 1 is the sole owner of the suit property bearing number A-41, Gali number 2, Braham Puri, Delhi, ad-measuring 100 square yards? (onus on the parties)
(iv) Whether the plaintiffs are entitled for decree of partition, as prayed in the suit? OPP
(v) Whether the plaintiffs are entitled for decree of declaration and cancellation of documents of the defendant number 1 dated 26.02.1991 and documents dated 16.02.2006 executed by defendant number 1 in favour of defendant number 2 as null and void, as prayed in the suit? OPP
(vi) Whether the plaintiffs are entitled for decree of permanent injunction, as prayed in the suit? OPP
(vii) Relief.
Plaintiffs' evidence
6. Plaintiffs have led their piece of evidence. Plaintiff number 1 Sh. Hira Lal was examined as PW1. He reiterated the facts as are mentioned by plaintiffs in their plaint. He tendered his evidence by way of affidavit which is Ex.PW1/A and relied upon the documents i.e. copy of site plan as Ex.PW1/1, copies of General Power of Attorney, agreement to sell, affidavit and receipt as Ex.PW1/2 to Ex.PW1/5, copy of two registered Wills, dated 26.02.1991 as Ex.PW2/1 and Ex.PW2/2, copy of notice under CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 8 of 23 Order XII Rule 8 of Code of Civil Procedure, dated 16.11.2016 and speed post receipts as Ex.PW1/6 and Ex.PW1/7, copy of speed post delivery report as Ex.PW1/8, receipt issued by Delhi Jal Board and House Tax receipt, issued in the name of plaintiff number 1 as Ex.PW1/9 and Ex.PW1/10, Life Insurance Police bearing number 174178578 in the name of plaintiff number 1, bank account, identity card and ration card mentioning the address of suit property as Ex.PW1/11 to Ex.PW1/14 (OSR) respectively. PW1 was cross examined at length by Learned Counsel for defendant. During the course of his cross examination, PW1 submitted that he came to know about the execution of the sale deed in favour of defendant number 2 only after filing of the present case. PW1 has also submitted that he had asked the defendant number 1 for partitioning of the property on various occasions orally.
Sh. Brij Pal Singh, Multi Tasking Staff in the office of Sub- Registrar, Office-IV, Seelampur, Delhi was examined as PW2. He produced the summoned record that is copy of registered Will, dated 26.02.1991 executed by Smt. Dhanwati W/o Sh. Daya Shankar. The same was registered vide registration number 4816, book number 3, volume number 337, page 126, dated 26.02.1991 and is Ex.PW2/1. PW2 also produced the copy of registered Will, dated 26.02.1991 executed by Smt. Ramwati W/o Sh. Jai Ram Verma. The same was registered vide registration number 4815, book number 3, volume number 337, page 125, dated 26.02.1991 and is Ex.PW2/2. PW2 was cross examined by Learned Counsel for defendant.
Sh. Ved Kumar, Lower Division Clerk, House Tax Department, Shahdra, North Delhi was examined as PW3. PW3 produced the complete file of house tax proceedings in respect of property number A-41, Gali number 2, Brahmpuri, Delhi. The attested copy of complete file is Ex.PW3/A (colly) consisting of 16 pages. PW3 deposed that for the CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 9 of 23 purpose of deciding house tax, photocopies of the title documents are taken. PW3 was cross examined by Learned Counsel for defendant.
Sh. Ombir Singh, MI/Upper Division Clerk, Delhi Jal Board, Seelampur, Delhi was examined as PW4. PW4 could not produce the summoned record as it was not traceable according to the report of Zonal Revenue Officer, North East III. The report is Ex.PW4/A. However, PW4 produced the summary of transfer of connection. PW4 deposed that initially the connection was in the name of Hira Lal but later on, it was changed in the name of Smt. Subhagi Devi. The same are Ex.PW4/B (colly). PW4 was cross examined by Learned Counsel for defendant.
Smt. Dhanwati was examined as PW5. PW5 was shown the Will, dated 26.02.1991 Ex.PW2/1 from the Court record. The original record of the said Will was also produced by Sh. Gopal Dutt, Record Keeper from the office of Sub-Registrar IV, Seleampur, Delhi and shown to PW5. After seeing the Will Ex.PW2/1, witness submitted that the Will Ex.PW2/1 was executed by PW5 as she had sold the property as mentioned in the Will to the persons named in the Will. PW5 deposed that the Will Ex.PW2/1, also bearing the signatures of PW5 at point B. PW5 further deposed that no other document was executed by her in favour of the purchasers. PW5 was further shown the General Power of Attorney Ex.PW1/2, dated 26.02.1991, agreement Ex.PW1/3, affidavit Ex.PW1/4 and receipt Ex.PW1/5 from the Court record. After seeing the same, PW5 submitted that she had not signed any of these documents and none of these documents bear her signatures. PW5 had denied her signatures as well as thumb impression at point B on the aforesaid documents. PW5 was cross examined by Learned Counsel for defendant.
Sh. Ram Niwas was examined as PW6. PW6 deposed that he knew Dhanwati Verma as she is maternal aunt (mausi) of PW6. PW6 was shown the Will, dated 26.02.1991 Ex.PW2/1 from the Court record. The original CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 10 of 23 record of the said Will was also produced by Sh. Gopal Dutt, Record Keeper from the office of Sub-Registrar IV, Seleampur, Delhi and shown to PW6. After seeing the Will Ex.PW2/1, witness submitted that the Will Ex.PW2/1 was executed by Smt. Dhanwati Verma. The Will Ex.PW2/1 also bears the signature of PW6 at point C as attesting witness. PW6 further deposed that he had visited the office of Sub-Registrar, Seelampur on 26.02.1991, when the Will Deed Ex.PW2/1 and the document Ex.PW1/2 to Ex.PW1/4 were executed by Smt. Dhanwati Verma. PW6 further deposed that on the same day, Smt. Ramwati, wife of Jairam Verma had also executed the said documents and a Will Deed. The Will Deed executed by Smt. Ramwati is already Ex.PW2/2. PW6 was further shown the General Power of Attorney Ex.PW1/2, dated 26.02.1991, agreement Ex.PW1/3, affidavit Ex.PW1/4 and receipt Ex.PW1/5 from the Court record. After seeing the same, PW6 submitted that he had witnessed the aforementioned documents and these documents bearing the signatures of PW6 at point C as attesting witness. PW6 further deposed that the Will Ex.PW2/2 executed by Smt. Ramwati also bearing the signatures of PW6 at point C as attesting witness. PW6 further deposed that Smt. Ramwati Verma had already expired about 14 years ago. PW6 was cross examined by Learned Counsel for defendant.
Defendants' evidence After closing of plaintiff's evidence, defendants have led their piece of evidence. Defendant number 1 Sh. Shiv Varan in order to prove his case stepped into the witness box as DW1. DW1 has reiterated the same facts as are mentioned by him in his written statement. Thereafter, he tendered his evidence by way of affidavit which is Ex.DW1/A and relied upon the documents i.e. sale deed, dated 16.03.2006 executed by him in favour of his wife Smt. Subhagi Devi and the same is Ex.DW1/1. DW1 was cross examined by Learned counsel for plaintiffs. During the course of his cross CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 11 of 23 examination, DW1 submitted that while purchasing of property he had paid the entire consideration amount in cash and that he did not remember whether he had any proof of availability/giving of sale consideration. DW1 has further submitted that Sh. Mahavir was the witness when he had paid the sale consideration amount to Smt. Ramwati and Smt. Dhanwati and that Sh. Mahavir had already expired. DW1 later on, submitted that he had paid the sale consideration to that Sh. Mahavir only and he did not know whether he had further paid the same to Smt. Dhanwati and Smt. Ramwati. Nor he had enquired the same from Smt. Dhanwati and Smt. Ramwati. DW1 admitted that prior to the year 2006, the water connection in the suit property was installed in the name of plaintiffs and that he had not paid the property tax of suit property prior to 2006. DW1 has also submitted that he had sold the suit property to Smt. Subhagi Devi in the year 2006 for the sale consideration amount of rupees 2,00,000/- in cash. DW1 further submitted that he had never filed any returns of Income Tax, VAT, GST either in his name or in his firm's name. DW1 further submitted that he did not remember whether he had received the entire sale consideration amount from his wife at the time of registration of sale deed in her favour. DW1 has further submitted that Sh. Ram Niwas is the witness to the documents executed in his favour by Smt. Dhanwati and Smt. Ramwati.
7. I have heard the arguments advanced on behalf of parties and perused the case file carefully.
Written submissions filed on behalf of plaintiffs Written submissions have been filed on behalf of plaintiffs. Apart from reiterating the contents of plaint and testimonies recorded on behalf of plaintiffs, it is stated that the defendants have not mentioned the specific article of the Limitation Act, 1963 or led any evidence with regard to issue CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 12 of 23 number 1 that is limitation. It is also stated that the plaintiffs came to know that defendant number 1 is claiming himself to be the owner of the suit property and that he had further sold the property in favour of defendant number 2 by sale deed, dated 16.03.2006 only after filing of the present suit. Thereafter, plaintiffs amended their reliefs and included the relief of declaration by filing an application under Order VI Rule 17 of Code of Civil Procedure which was allowed vide order dated 20.08.2016. It is stated that right to sue, thus accrued on 27.02.2016, that is on the date when the written statement was filed by the defendants mentioning these aforesaid grounds. It is further stated that with respect to suit for partition, Article 113 of the Limitation Act, 1963 applies that is when the right of plaintiffs threatened from the opposite side. Defendant number 1 denied the partition of suit property on 10.12.2015, and the plaintiffs had instituted the present suit on 04.01.2016, which is well within the time.
Plaintiffs have also explained that they had properly valued the suit. As plaintiffs have pleaded the joint possession of the property and accordingly paid the fixed Court fees in terms of Article 17 (vi) of the Court Fees Act, 1870. It is also stated that plaintiffs had led their evidence which shows the possession of plaintiffs in the suit property like Life Insurance Corporation Policy, ration card, identity card of plaintiff number
1. With respect to the reliefs of declaration also, plaintiffs have mentioned that they had paid the court fees in terms of 17 (iii) of the Court Fees Act, 1870. With respect to the issue that the plaintiffs are the co-owners of the suit property, it is stated that only on the basis of valid documents of the ownership, plaintiff number 1 got the water connection in the suit property in his name. It is stated that the defendant number 1 only filed the photocopies of unregistered General Power of Attorney, agreement to sell, affidavit and receipt, dated 26.09.1991. It is stated that these documents are identical to the plaintiffs documents except certain omissions. CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 13 of 23 Thereafter, the evidence led on behalf of plaintiffs has been discussed. Plaintiffs have also submitted that they also got examined the official from Sub Registrar Office with respect to the registered Wills, both dated 26.02.1991 Ex.PW2/1 and Ex.PW2/2. Sh. Ram Niwas, who is the witness to the execution of these documents is also examined as PW6, who had specifically deposed that Smt. Dhanwati and Smt. Ramwait, got executed the documents of the property in favour of plaintiffs and defendant number
1. It is specifically stated that there are several contradictions in the cross examination of defendant number 1 as on one hand, he himself stated that Sh. Ram Niwas is the witness of the documents executed in his favour and on the other hand, he had submitted that he was not able to remember whether Sh. Ram Niwas had witnessed the execution of the documents. It is stated that from the above discussion, it is very clear that the plaintiffs had discharged the burden lying upon them. While, the onus lying upon the defendants had not been discharged by them. It is stated that the defendant number 1 had no right to sell the suit property in favour of defendant number 2 as he was only one of the co-owners of the suit property. It is further stated that the plaintiffs are entitled to 1/3 rd share in the property and relied upon the judgment titled as Sushma Tehlan Dalal v. Shivraj Singh Tehlan & Ors., 2011 (123) DRJ 91. During the course of oral arguments, Learned Counsel for plaintiffs has filed following judgments titled as Ramesh Chand v Suresh Chand & Anr., RFA No. 358/2000, decided on 09.04.2012, Pradip Buragohain v Pranati Phukan, Civil Appeal No. 5561/2008, decided on 07.07.2010, Government of Goa through the Chief Secretary v Maria Julieta D'Souza (D) & Ors., Civil Appeal Nu. 722/2016, decided on 31.01.2024 and Chief Conservator of Forests, Govt of A.P. v Collector & Ors., Civil Appeal No. 8580/1994, decided 18.02.2003. All these judgments have been perused very carefully and CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 14 of 23 understood/interpreted vis-a-vis facts of the case.
Written submissions on behalf of defendants Written submissions on behalf of defendants have also been filed in which the contents of plaint of plaintiffs especially the reliefs claimed by them, the contents of written statement, issues have been reiterated. Thereafter, it is stated that the plaintiffs have got examined six witnesses, while the defendants got examined DW1. It is also stated that the present suit has been filed after 22 years of the execution of the documents. Whereas the limitation period for filing the said suit is three years. It is stated that the sale deed was executed on 16.03.2006 and there is a delay of almost 13 years in relation to that issue. With respect to issue number 3, it is stated that plaintiffs have placed on record photocopies of General Power of Attorney, agreement to sell, affidavit, receipt and Will, all dated 26.02.1991 and have never produced the original documents. It is stated that all these documents are forged and fabricated. On the other hand, defendant number 1 had produced and got executed the original agreement to sell, General Power of Attorney, affidavit and receipt which were executed by the seller in his sole name and accordingly, defendant number 1 has successfully proved that he is the sole owner of the suit property.
Reasons and analysis/finding
8. After recording the gist of evidence led by both the parties, let me record the findings on each issue.
Issue number 1, that is, whether the suit of the plaintiffs are barred by limitation? The onus to prove this issue is upon the defendants. Defendants have miserably failed to lead any relevant piece of evidence in this regard even after availing relevant opportunities to do the same. Neither, the same has ever been stressed nor explained by the defendants at any stage of the case. It is the case of plaintiffs that they have come across CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 15 of 23 the fact of existence of the documents in the favour of defendant number 1 allegedly executed by Smt. Ramwati and Smt. Dhanwati only when the defendants had filed their written statement. Again, this assertion is not negated by the defendants either by leading evidence or by making necessary submissions. Further, after perusing the case file carefully, there seems to be no reason for not considering the present suit not within the period of limitation. Accordingly, this issue is decided against the defendants.
Issue number 2, that is, whether the suit of the plaintiffs has not properly valued for the purpose of court fees? The onus to prove this issue is upon the defendants. No evidence/submissions in this regard has ever been made by defendants either at the time of leading evidence or at the time of making the submissions. It is all throughout the case of plaintiffs that they are in the possession of the suit property. After perusing the case file properly in light of the Suit Valuation Act/Court Fees Act/Civil Procedure Code, there seems to be no reason for arriving at such conclusion. Thus, there is no merit in claiming that the suit of the plaintiffs has not properly valued for the purpose of court fees. Accordingly this issue is decided against the defendants.
Now coming to Issue number 3, that is, whether the plaintiffs are the co-owners of the suit property or the defendant number 1 is the sole owner of the suit property bearing number A-41, Gali number 2, Braham Puri, Delhi, ad-measuring 100 square yards? Issue number 4, that is whether the plaintiffs are entitled for decree of partition, as prayed in the suit? and Issue number 5, that is, whether the plaintiffs are entitled for decree of declaration and cancellation of documents of the defendant number 1 dated 26.02.1991 and documents dated 16.02.2006 executed by defendant number 1 in favour of defendant number 2 as null and void, as prayed in the suit? The onus to prove issue bearing number 3 is upon both the CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 16 of 23 parties, while the onus to prove issues bearing numbers 4 and 5 is upon the plaintiffs. All these issues are taken up together being interconnected and having bearing upon each other.
First of all, it seems necessary that the aspect of burden of proof while leading evidence in the civil proceedings needs to be analyzed. Basically, the legal burden is the burden of proof which remains constant throughout a trial. The incidence of the burden on different issues may lie in different places, and issues may rise or fall according to the facts proved, but on analysis of issue the legal burden will not change it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial one has failed to establish these to the appropriate standard, one will lose. The incidence of this burden is clear from the pleadings, it usually being incumbent upon the plaintiff to prove what he contends. The evidential burden, however, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; this burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be, was adduced by either side. Indian Evidence Act also works in consonance with this universally acceptable scheme. As, mentioned in Section 101 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 provides upon whom burden of proof lies. It has been provided that the burden of proof in a suit or proceeding lies on that person who would fail, if no evidence at all where given on either side. Section 103 of the Act provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 17 of 23 provided by any law that the proof of that fact shall lie on any particular person, and lastly Section 104 of the Act provides that the burden of proving any fact necessary to be proved in order to enable any person to give evidence of other fact is on the person who wishes to give such evidence. Also, whether a civil or a criminal case, the anvil for testing of "proved", "disproved" and "not proved", as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. In such a suit, plaintiff has to create a high degree of probability so as shift the onus on the defendants. Thereafter, the result of the suit depends upon the evaluation of the result drawn by the applicability of the rule. Reliance is placed upon A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
Adverting, to the facts of the present case, burden of proof is of course upon the plaintiffs to prove their contentions/assertions regarding the creation/existence of co-ownership alongwith defendant number 1 over suit property. Plaintiffs have specifically deposed that the suit property jointly belongs to the plaintiffs and defendant number 1 having purchased the same from Smt. Dhanwati and Smt. Ramwati on 26.02.1991 by way of documents viz. General Power of Attorney, agreement to sell, affidavits, cash receipt and registered Wills, all dated 26.02.1991. While, it is the case of defendant number 1 that he is the sole owner of the suit property having purchased the same from Smt. Ramwati and Smt. Dhanwati by virtue of documents that is General Power of Attorney, agreement to sell, affidavit and cash receipt, again dated 26.02.1991. Thereafter, DW1 allegedly sold the suit property to his wife that is defendant number 2 by way of CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 18 of 23 registered sale deed in the sum of rupees 2,00,000/- on 16.03.2006. Doubtless, erstwhile owners of the suit property are Smt. Ramwati and Smt. Dhanwati as there is no disagreement on this issue as far as parties of this case are concerned. Now, plaintiffs in order to prove their case stressed upon the presence of aforesaid Wills executed jointly in favour of plaintiffs as well as defendant number 1 by Smt. Dhanwati and Smt. Ramwati. Plaintiffs have got examined Smt. Dhanwati as PW5 and she had specifically deposed that she had sold the property as mentioned in the Will to the persons named in the Will. Executant of the Will Ex.PW2/2 Smt. Dhanwati had already expired. Also, it is not out of place here to express that the Wills in question are different/distinguished from the classic disputes involving the Wills as the present case relates to the transfer of rights between the parties not related to each other.
Further, plaintiffs also got examined Sh. Ram Niwas admittedly the witness to all the documents executed jointly between the plaintiffs alongwith defendant number 1 and Smt. Ramwati and Smt. Dhanwati. He has specifically deposed that all these documents viz. General Power of Attorney, agreement, affidavit, receipt and registered Wills, all dated 26.02.1991 were executed in his presence. Neither the PW5 nor PW6 were cross examined by Learned Counsel for defendants and their testimonies as such remain unrebutted. Here, it is also relevant to mention that the Hon'ble Supreme Court in Suraj Lamp and Industries Private Limited (2) through Director v. State of Haryana & Another (2012) 1 SCC 656 has also recognized the relevance of section 53 A of the Transfer of Property Act, 1882. Later on, this concept/aspect has been explained/extended by the Hon'ble High Court of Delhi by explaining the creation of rights/interest provided/created by section 202 of Indian Contract Act, 1872. Alongwith, devolution of interest in commercial transactions pursuant to a Will in terms of provisions of Indian Succession Act, 1926. It is observed that a CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 19 of 23 person may not have a complete ownership rights or say cannot be categorized as the classic owner of the suit property unless there is a duly registered sale deed, however, certain rights exist in an immovable property in pursuance of the provisions of section 53A of the Transfer of Property Act, 1882 read with section 202 of the Indian Contract Act, 1872. In other words, it can be said that those persons who though are not having the registered sale deeds executed in their favour, but, having the complete set of the documents like the plaintiffs in this case that is General Power of Attorney, agreement to sell, affidavits, cash receipt and registered Wills, all dated 26.02.1991 are said to have a better title or say better entitlement and right to possession of the property. Reliance is placed upon Hardip Kaur v Kailash & Anr., (2012) 193 DLT 168, Ramesh Chand v. Suresh Chand & Anr, (2012) 188 DLT 538 and Maya Devi v Lalta Prasad, 2014, Legal Eagle (SC) 120.
Again, possession of water bills, house tax receipt in the name of plaintiff number 1 before the year 2006 have also not been disputed/rebutted by defendant number 1. It is a trite law that in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a case for grant of such declaration. Thus, in view of above discussion it can be safely summed up that the burden of proof lying upon the plaintiffs in light/view of balance of probabilities have been well discharged by them. Further, possessory rights are a facet of different kinds of rights over immovable property and can be subject matter of partition. Reliance is placed upon Surjit Singh & Ors. v Ekta Gulati & Ors., RFA No. 166/2012, decided on 16.08.2012 by Hon'ble High Court of Delhi. Accordingly, as burden of proof discharged by plaintiffs onus then shifts up on the defendants. Defendant number 1 though has mentioned that General Power of Attorney, affidavits, etc were executed in his favour by Smt. Ramwati and Smt. Dhanwati but despite opportunities given, for the CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 20 of 23 reasons best known to defendant number 1, these documents were never led in evidence by defendant number 1. Learned Counsel for plaintiffs during the course of his oral submissions has specifically raised this issue and submitted that the non-production of documents admittedly available with the party would give rise to an adverse inference against that party and that it has to be seen in light of section 114 (g) of Indian Evidence Act, 1872. Also, there are clear contradictions in the cross examination of defendant number 1 qua the movement of consideration from defendant number 1 to Smt. Ramwati and Smt. Dhanwati. What to say about the movement of consideration from defendant number 1 to defendant number 2 which has again not been proved. It is settled law that a vendor cannot transfer a title to the vendee better than he himself possesses, the principle is that no one can confer a better title than what he himself has. Reliance is placed upon Union of India & Ors. v Vasavi Co-operative Housing Society Limited & Ors., (2014) 2 SCC 269 and P. Kishore Kumar vs Vittal K. Patkar, Civil Appeal No. 7210/2011 decided by the Hon'ble Supreme Court of India on 20.11.2023. The onus thus lying upon the defendants have not been discharged by them by calling best available evidence. Therefore, in the totality of circumstances, it can be safely said/summed up that in the absence of relevant title documents/attesting witnesses/previous chain of documents/and aboveall receipt of consideration, defendants have not been able to discharge the burden of proof lying upon them. The title of suit property as is required by law to be proved by defendants and onus lying upon them cannot be discharged by them. Accordingly, all these issues are decided in favour of plaintiffs and against the defendants.
Issue number 6, that is, whether the plaintiffs are entitled for decree of permanent injunction, as prayed in the suit? The onus to prove this issue is upon the plaintiffs. As, issues bearing numbers 3, 4 and 5 have already been decided in favour of plaintiffs, this issue is also decided in favour of CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 21 of 23 plaintiffs.
9. Accordingly, the suit of the plaintiffs is decreed in the following terms:- (a) A decree of declaration and cancellation is passed in favour of plaintiffs and against the defendants thereby documents that is agreement to sell, General Power of Attorney, affidavit and receipt, all dated 26.02.1991 in favour of defendant number 1 Sh. Shiv Varan are declared as null and void. (b) Alongwith, this a decree of declaration and cancellation is also passed in favour of plaintiffs and against the defendants qua the sale deed, dated 16.03.2006 executed by defendant number 1 Sh. Shiv Varan in favour of defendant number 2 Smt. Subhagi Devi is hereby declared as null and void. (c) A preliminary decree of partition is passed in favour of plaintiff whereby plaintiffs and defendant number 1 shall be entitled to 1/3rd each share in the suit property that is suit property that is A-41, Gali number 2, Braham Puri, Delhi, ad-measuring 100 square yards. Defendants are directed to hand over the physical possession of 1/3 rd each share in the suit property to the plaintiffs. The parties shall be entitled to exclusive possession of their respective shares in terms of preliminary decree. However, the appropriate method of partition of suit property shall require further inquiry, which shall be conducted in due course. (d) Further, a decree of permanent injunction is also passed in favour of plaintiffs and against the defendants thereby defendants, their associates, assigns, agents, servants etc. are restrained from dispossessing the plaintiffs and they further restrained from selling or creating any third party interest and interfering in the peaceful possession use and occupation of the property that is A-41, Gali number 2, Braham Puri, Delhi, ad-measuring 100 square yards.
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10. Preliminary decree sheet be prepared accordingly.
Digitally signed byMANU MANU VEDWAN VEDWAN Date: 2024.05.28 17:00:53 +0530 Manu Vedwan) District Judge-02 (North East District) Karkardooma Courts, Delhi.
Announced in the open court today i.e. 24th May, 2024 CS No. 06/2016 Hira Lal through LRs & Anr. vs. Shiv Varan & Anr. Page No. 23 of 23