Delhi District Court
Albel Singh ( Now Deceased) vs Smt. Radha D/O Sh. Ramji Lal on 19 December, 2011
IN THE COURT OF SH. GAGANDEEP JINDAL, CIVIL JUDGE05
CENTRAL, DELHI
Suit No. 682/2010
IN THE MATTER OF:
Albel Singh ( Now deceased)
Through LR 's
i) Phoolo Devi Wd/o Sh. Albel Singh
ii) Jagdish Singh
iii)Jai Bhagwan
iv)Sri Bhagwan
v) Jagbir Singh
vi)Rakesh Kumar
All son of Late Sh. Albel Singh
vii)Shakuntala Devi
W/o Sh. Dharam Pal
R/o VPO Lakhu Buana, Distt., Panipat
Haryana.
............Plaintiff
VERSUS
Smt. Radha D/o Sh. Ramji Lal
W/o Sh. Sriniwas Soni
R/o VPO Auchandi, Delhi ......Defendant
Date of Institution: 29.04.2003
Date of reserved for judgment: 14.12.2011
Date of decision: 19.12.2011
SUIT FOR DECLARATION /CANCELLATION OF SALE DEED DT.
18061987 AND ALSO THE MUTATION ORDER DT. 14022000
AND & PERMANENT INJUNCTION
Suit no. 682/10 Page 1 of 14
JUDGMENT:
1. Vide this judgment, I shall disposed of the suit for declaration / cancellation of sale deed dt. 18061987 and also the mutation order dt. 14022000 as null and void and for permanent injunction filed by the plaintiff.
2. The brief facts of the case are as follow : The plaintiff in his plaint has submitted that he was landless person of Village Auchandi , Delhi and under 20 economic progress he was alloted land bearing Khasra No. 41/21 measuring 4Bigha14Biswa situated in Village. Auchandi as an Asami, It is further submitted that after the lapse of five years he was declared as Bhumidar by the revenue Assistant.
3. It is further submitted that in the year 1987, plaintiff wanted to take loan from Sh. Ranbir Singh and defendant Smt Radha on occasion of his daughter's marriage. Plaintiff signed certain written documents in good faith without knowing the contents of the same in order to take the loan from the defendant and her relative. But later on the defendant refused to give any loan . It is further submitted that plaintiff had never handed over the physical possession of the land in dispute to the defendant. It is further submitted that in a precautionary measure the plaintiff moved an application to Tehsidar , Alipur Delhi not to take any action on the Suit no. 682/10 Page 2 of 14 basis of signed documents of the plaintiff in favour of the defendant as fraud has been committed by the defendants . It is further submitted that the plaintiff kept quit after moving the objection and enquired of copy of Khasra Girdawari in the years 199798 that the name on the plaintiff was depicted in the revenue record qua the suit property. It is further submitted that plaintiff obtain the copy of Khatoni from Halqa Patwari on 15042002 and came to know that defendant inclusion of his relative got sale deed executed in their favour of the land in dispute measuring 3B14B and other land 1Bigha in favour of Smt. Radha on the basis of signed documents on which the signature of plaintiff had been obtained by fraud. It is further submitted that plaintiff field objections on 09091998 against the mutation order dt. 0505 1998 . It is further submitted that the plaintiff had never sold the property to the defendant therefore, the present suit is filed.
4. On the other hand, the defendant in her written statement has submitted that the plaintiff after becoming Bhumidar of the suit property entered into an agreement with the defendant to sell part of his land measuring 16 Biswas to the defendant for Rs. 5500/ vide written agreement dt. 07081982 duly signed by plaintiff and witnessed by Sh. Chattar Singh & Yasbir Singh. It is further submitted that the plaintiff received the entire consideration of 07 Suit no. 682/10 Page 3 of 14 081982 and executed receipt dt.07081982 duly signed by plaintiff. It is further submitted that on the request of the plaintiff the sale consideration was increased by Rs. 3500/ & area of the land was also increased from 16Biswa to 1Bigha and plaintiff executed sale deed dt. 18061987 in respect of suit property. It is further submitted that the sale deed were duly signed by the plaintiff before the S.R and the plaintiff handed over the physical possession of the land to the defendant. It is further submitted that the plaintiff had also handed over all the original title document of the suit property to the defendant i.e. Allotment certificate dt. 06 041976, L.R. Form 37, Receipt dt. 20031976 and Book under P Form 16 issued by the Tehsildar.
5. It is further submitted that the plaintiff again turned dishonest and got issued a legal notice dt. 11121995 through his Advocate Sh. P.L. Handu. Where it is stated that the defendant by deceitful means taken over the possession of the suit property from the plaintiff.
6. It is further submitted that the on the basis of sale dt . 18061987, the defendant applied for mutation against which the plaintiff filed objection. But plaintiff agreed and made statement before the Tehsildar to the effect that he had received the consideration amount , handed over the possession of the land and executed Suit no. 682/10 Page 4 of 14 sale deed. Therefore, mutation order in the name of defendant was sanctioned on 14022000. It is further submitted that plaintiff further filed false complaint before the Magistrate in the year 2000 which was dismissed as the same was found based on false accusation on upon him. It is further submitted that the suit of the plaintiff is barred by limitation. It is further submitted that this court has no jurisdiction to enquired the legality of the Mutation passed by the revenue department.
7. In reply on merits the defendant has denied that she had agreed to give loan to plaintiff at his request to solemnize the marriage of his daughter in 1987. The defendant denied all other allegation made by the plaintiff and prayed that the suit of the plaintiff be dismissed.
8. The plaintiff has filed the replication to the written statement of defendant. in the replication the plaintiff again denied that he had sold the suit property to the defendant and also denied the fact that he had handed over the possession of the suit property to the defendant.
9. But in his replication the plaintiff submits that he was under the belief that he has custody of titled document of the suit property i.e Allotment certificate dt. 06041976, L.R. Form 37, Receipt dt. 20 031976 and Book under P Form 16 issued by the Tehsildar. But later on he expressed doubt as to who has actually taken the said Suit no. 682/10 Page 5 of 14 document and he shall take appropriate action against the defendant. The plaintiff had also admitted that he had sent a legal notice dt. 11121995. It is further submitted that the complaint before the Magistrate which was filed by him against the defendant is still pending. The plaintiff had also admitted that he had filed the objection application as a precautionary measure. Plaintiff had admitted that he had filed an appeal against the mutation order dt. 14022000 and denied all the other allegation made by the defendant in her written statement .
10.From the pleadings of the parties, following issues were framed vide order dated 06.05.2004.
i) Whether the plaintiff is entitled for a decree of declaration , declaring the sale deed dt. 18061987 as null and void, as prayed.
? OPP
ii) Whether the plaintiff is entitled for a decree of declaration in respect of Mutation order dt. 14022002, as null and void, as prayed. ? OPP
iii) Whether the plaintiff is entitled for an equitable relief of permanent injunction as prayed? OPP
iv) Whether the suit is not maintainable in its present form? OPD
v) Whether the suit of the plaintiff is barred by limitation as claimed? OPD Suit no. 682/10 Page 6 of 14
vi) Whether the suit is barred by the provision of Delhi Land Reforms Act as claimed? OPD
vii) Relief.
11.To prove his case, the plaintiff has examined himself as PW1 and filed evidence by way of affidavit Ex. P1 where PW1 in his chief has reiterated the fact mentioned in the plaint . The plaintiff has not proved any document in his evidence.
12.On the other hand the defendant has not led any evidence as his evidence was closed vide order dt. 21042011.
13. Arguments heard . Record file perused.
14. My issue wise findings are as follow : I shall take issue No. 4 first.
15. Issue No. 4. Whether the suit is not maintainable in its present form? OPD The present case has been filed by the plaintiff to declare the sale deed executed by the plaintiff in favour of the defendant qua the suit property , as null and void. The plaintiff in his cross examination has stated that suit property might be entered in to the name of defendant since the year 2000 in respect of possession and Bhumidari Right. He further admitted that despite my objection husband of the defendant namely Mr. Srinivas raised the boundary wall of the suit property. It is also admitted that the Suit no. 682/10 Page 7 of 14 defendant constructed a temple and a room in the suit property.
16.The defendant in his written statement has submitted that the plaintiff got issued a legal notice dt. 11121995 in which it is stated that the defendant by deceitful means and false representation taken over the possession of the suit property from the plaintiff. The plaintiff in his replication has admitted that he issued a legal notice dt. 11121995 through her advocate .
From these fact , it is clear the defendant are in possession of the suit property . But in the present suit the plaintiff has not claimed the possession of the suit property.
17. Section 34 of the Specific Relief Act.
"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right , and the court may in its discretion make therein a declaration that he is so entitled , and the plaintiff need not in such suit ask for for any further relief".
"Provided that no court shall make any such declaration where the plaintiff being able to seek further relief that a mere declaration of title , omits to do so."
18. In view of the section 34 of the Specific Relief Act the plaintiff has not claimed the consequential relief of possession while claiming Suit no. 682/10 Page 8 of 14 the relief declaration . Therefore, the suit of the plaintiff is not maintainable in its present form. Hence, this issue is decided in favour of the defendant and against the plaintiff.
19. Issue No. 5 Whether the suit of the plaintiff is barred by limitation as claimed? OPD The present suit has been filed by the plaintiff for declaration to declare the sale deed dt. 18061987 as null and void only on 29 042003. The plaintiff in his crossexamination deposed that he was taken forcibly and thereafter he was made to execute the sale deed dt. 18061887 forcibly and at that time he had not made any complaint regarding this forcibly execution sale deed either to police or to any person. The plaintiff has also correctly identified his signature at point "C" on the sale deed Ex. PW1/D4.
20.From this part of crossexamination of the plaintiff, it is proved that the plaintiff was well aware about the execution ofsale deed on 18 061987.
The defendant in his written statement has stated that plaintiff sent a legal notice dt. 11121995 in respect of the fact that the defendant by deceitful means had taken the possession of the land from the plaintiff . The plaintiff in his replication in reply to written statement has submitted that the defendant has admitted the fact that he has got issued a legal notice dt. 11121995 to the Suit no. 682/10 Page 9 of 14 defendant . It means that plaintiff was having the knowledge of the sale deed and handing over the possession of the suit property to the defendant on 11121995 . But even then the plaintiff has not took any action against the defendant in respect of the documents obtained on which the sign of the plaintiff was obtained by defendant as alleged.
21.Article 56 of the Limitation Act.
The period of limitation to declare the forgery of an instrument issued or registered is three years from when the issue or registration becomes known to the plaintiff.
22.In view of the above discussion, it is proved that plaintiff was having the knowledge of the sale deed dt. 18061987 Ex. PW1/D4 on the very same day on which the same was executed . Therefore, the suit for declaration must have been filed within 3 years from the date i.e. 18061987. But the present suit has been filed only on 29042003, which is clearly barred by limitation. Hence this issue is decided in favour of the defendant and against the plaintiff.
23. Issue No. 6. Whether the suit is barred by the provision of Delhi Land Reforms Act as claimed? OPD In the present case, the plaintiff has claimed the relief of declaration to declare the mutation dt. 14022002 in favour of the Suit no. 682/10 Page 10 of 14 defendant as null and void.
As per the provision of section 185 of the Delhi Land Reform Act,and section 83 of the Delhi Land Revenue Act. , the civil court has no jurisdiction to change the revenue record . If the plaintiff is aggrieved by any Mutation order passed by the Tehsildar. He may filed the complaint /appeal against the said mutation order to the higher authority in the revenue department i.e. Registrar . Hence this issue is decided in favour of the defendant and against the plaintiff.
24.Issue No. 1 & 2. i) Whether the plaintiff is entitled for a decree of declaration , declaring the sale deed dt. 18061987 as null and void, as prayed. ? OPP ii) Whether the plaintiff is entitled for a decree of declaration in respect of Mutation order dt. 14022002, as null and void, as prayed. ? OPP The plaintiff has also claimed the relief of declaration to declare the sale deed dt. 18061987 as null and void on the basis that defendant by fraud had obtained the signature in certain documents when he has approached the defendant to take loan on occasion of marriage of her daughter. The plaintiff has in his plaint and affidavit Ex. P1 has stated that he had signed some written documents on the saying of defendant without going through the Suit no. 682/10 Page 11 of 14 contents of the same and the defendants have played fraud and converted those documents in sale deed in respect of the suit property.
25.To prove the fact of fraud, the plaintiff has to bring some strong evidence against the defendant. But the plaintiff in his entire evidence has even not mentioned the date on which the defendant obtained sign on the said document. The plaintiff in his cross examination has stated that suit property might be entered in to the name of defendant since the year 2000 in respect of possession and Bhumidari Right. He further admitted that despite my objection husband of the defendant namely Mr. Srinivas raised the boundary wall of the suit property. It is also admitted that the defendant constructed a temple and a room in the suit property If the plaintiff had not executed any sale deed in favour of the defendant, then why he had allowed the defendant to raise construction in the suit property. If the construction is raised against his wish then why he has not taken any action against the defendant for raising unauthorized construction.
26.The plaintiff has also deliberately concealed the fact that he has handed over the title documents i.e Allotment certificate dt. 0604 1976, L.R. Form 37, Receipt dt. 20031976 and Book under P Form 16 issued by the Tehsildar. Rather in his replication he has Suit no. 682/10 Page 12 of 14 stated that he is not aware about the custody of his above mentioned title documents.
The plaintiff failed to give any satisfactory answer in his replication as how the defendants came into the possession of the title documents of the plaintiff. The plaintiff in his cross examination deposed that he was taken forcibly and thereafter he was made to execute the sale deed dt. 18061887 forcibly and at that time he had not made any complaint regarding this forcibly execution sale deed either to police or to any person. The plaintiff has also correctly identified his signature at point "C" on the sale deed Ex. PW1/D4. But the plaintiff has not taken any action against the defendants for the reasons best known to him.
27.From these facts , it is proved that plaintiff had executed sale deed dt. 18061987 Ex. PW1/D4 qua the suit property in favour of the defendant voluntarily and no fraud has been played by the defendant upon the plaintiff at the time of execution of the sale deed dt. 18061987. Hence this issue is decided in favour of the defendant and against the plaintiff.
28.Issue No. 3. Whether the plaintiff is entitled for an equitable relief of permanent injunction as prayed? OPP As decided in the above issue , the plaintiff is not entitled to the relief of declaration to declare the sale deed dt. 18061987 Ex. Suit no. 682/10 Page 13 of 14 PW1/D4 as null and void. The plaintiff is entitled to the permanent injunction to restrain the defendant from creating third party interest in the suit property because in view of the sale deed dt. 18061987 Ex. PW1/D4, the defendant is the owner of the suit property and she is entitled to deal with the suit property as she wish. Therefore, the plaintiff is not entitled to permanent injunction as prayed. Hence this issue is decided in favour of the defendant and against the plaintiff.
29. Relief.
The plaintiff has failed to prove his case. Hence the suit of the plaintiff is dismissed.
Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced & signed in the (Gagandeep Jindal)
open court on 19.12.2011 Civil Judge/Central05
Delhi
Suit no. 682/10 Page 14 of 14