Delhi District Court
Shri Ramesh Chander vs Shri Sukh Chand Jain on 13 November, 2014
1
In the Court of Ms. Namrita Aggarwal
CCJ Cum Additional Rent Controller1 (Central)
Tis Hazari Courts, Delhi.
Case No. 27/13/05
Unique I.D. No. 02401C0130342005
In the matter of :
1. Shri Ramesh Chander
2. Shri Ram Tirath
3. Shri Hawa Singh
4. Shri Pawan Singh
Both sons of late Shri Sukhbir Singh
R/o House no. 399,
Village Mitraon, Delhi. .............Plaintiffs
Versus
1. Shri Sukh Chand Jain
2. Shri Amrit Chand Jain
3. Shri Akesh Chand Jain
All sons of Shri Pooran Chand Jain
4. Smt. Anju Jain
W/o Shri Akesh Chand Jain
All R/o C2/19, Model Town,
Delhi110009.
5. Shri Dhyan Singh
S/o Sh. Lal Singh
R/o 15/15, Moti Nagar,
New Delhi110015. ...........Defendants
Page 1 of 38 CS-27/13/05
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SUIT FOR CANCELLATION OF DEEDS, DECLARATION AND
PERMANENT INJUNCTION.
Date of Institution : 21.02.2005
Date of final arguments heard/reserved for judgment: 19.05.2014
Date of decision : 13.11.2014
JUDGMENT :
1. Facts as averred in the plaint are that plaintiffs have filed the present suit for cancellation of sale deeds, declaration and permanent injunction stating that plaintiffs are originally residents of village Mitraon holding ancestral land and residential house and a plot comprised in Khasra no. 387 (019) situated within the revenue estate of village Mitraon, Delhi (hereinafter referred to as the 'suit property'), which was allotted to father of the plaintiffs Sh. Sukhbir Singh during consolidation proceedings in the year 197273. After deducting the double value of agricultural land from his khata, the father of the plaintiffs was given the possession of above said plot and after acquiring the above said residential plot, father of the plaintiff raised construction of the boundary wall around it and it was being used for the purpose of teethering his milch cattles and other agricultural products. It is stated that after the death of above said Sh. Sukhbir Singh, plaintiffs succeeded the ownership rights of suit plot being sons and are exclusive owner in Page 2 of 38 CS-27/13/05 3 possession of the same and using the suit property as gher and gitwar without any interruption from any quarter whatsoever. It is stated that defendants have no right or interest over the suit plot and are complete stranger. However, on 26.01.2005, a flying squad visited the suit property and started enquiring from the plaintiff about their possession. Police officials who visited the plot when enquired from the plaintiffs about their right and title in the suit property, plaintiffs disclosed the fact that the suit plot was allotted to their father during consolidation proceedings. They also disclosed that they are in possession of the plot since the allotment. Police officials thereafter went back and when plaintiffs made enquiries in this regard, it came to their knowledge that police had come at the instance of defendants no. 1 to 4, who claimed to have purchased the suit plot by sale deed. Plaintiffs thereafter contacted the revenue officials and upon enquiries, it was found that in respect of suit property name of defendants no. 1 to 4 is mutated in revenue record. It also transpired that two sale deeds were executed by defendant no. 5 in favour of defendants no. 1 to 4 on 01.05.1985 and 18.05.1985 when defendant no. 1 was acting as GPA of father of the plaintiffs. It was further revealed that on the basis of alleged sale deeds mutation orders were also sanctioned by Tehsildar in favour of defendant no. 1 to 4 and plaintiffs obtained the certified copy of whole of the proceedings of mutation, from which copy of the above said two sale deeds were obtained. From the Page 3 of 38 CS-27/13/05 4 perusal of the sale deeds, it was revealed that a General Power of Attorney was appointed by late father of the plaintiff on 03.05.1982 being defendant no. 5. It is stated that in fact father of the plaintiffs never authorised defendant no. 5 or anybody else as an attorney. As such, the GPA dated 03.05.1982 is false and fabricated document and infact, defendants in collusion with each other had manufactured those documents to grab the suit property from plaintiffs. It is stated that father of plaintiffs had never alienated or transferred the suit property in favour of anybody and possession of the suit property is with plaintiffs since the date of its allotment. It is further stated that the alleged GPA in favour of the defendant no. 5 is not a registered document and there was no occasion for father of the plaintiffs to sell or alienate the suit property of defendants no. 1 to 4 through defendant no. 5. Moreover, father of the defendant never received any sale consideration. It is stated that no sale deed could be registered on the basis of unregistered GPA. As such, no right or title has been transferred in favour of defendants no. 1 to 4 and mutation order based on sham sale deeds is bad in law because Naib Tehsildar never issued any notice to father of plaintiffs or to plaintiffs nor he issued any proclamation before mutating the name of defendants no. 1 to 4 in the record which was a mandatory requirement as per law. On this basis, the present suit was filed with the prayer for decree of cancellation for canceling the sale deed dated 18.05.1985 and 01.05.1985 Page 4 of 38 CS-27/13/05 5 and for decree of declaration for declaring the GPA dated 03.05.1982 purported to have been executed by late Sh. Sukhbir Singh in favour of defendant no. 5 to be forged and fabricated document. It is also prayed that by decree of permanent injunction, defendants or their agents be restrained from forcibly dispossession plaintiffs from the suit property.
2. Defendants no. 1 to 4 have filed their written statements and have taken the preliminary objection that plaintiffs have no locusstandi to file the present suit as they have no right, title or interest in the suit property. It is stated that late Sh. Sukhbir Singh had transferred the title of the suit land, which is situated in the Lal Dora of village Mitraon and handed over its physical possession to defendants. It is stated that during the lifetime of Sh. Sukhbir Singh, he initially entered into agreement to sell in respect of land measuring 19 biswas in khasra no. 387 for sale consideration of Rs. 20,000/ on 26.07.1980 in favour of Shyan Singh and Hazara Singh and in this regard Sh. Sukhbir Singh had received Rs. 5,000/ from purchaser vide receipt dated 25.07.1980, which was duly registered with SubRegistrar. Thereafter, a supplementary agreement to sell dated 12.04.1982 was also executed between Sh. Sukhbir Singh and Sh. Dhyan Singh and Sh. Hazara Singh for total sum of Rs. 50,000/ and Sh. Sukhbir Singh while acknowledging the earlier receipt of Rs. 5,000/ had received the balance sale consideration of Rs. 45,000/ and said receipt Page 5 of 38 CS-27/13/05 6 was also duly registered with the SubRegistrar. Apart from it, late Sh. Sukhbir Singh received the Lal Dora certificate on 25.07.1980 from the authorities to show that suit land falls within the Lal Dora Abadi and this certificate was handed over by Sh. Sukhbir Singh to Sh. Shyan Singh and Sh. Hazara Singh at the time of executing the agreement to sell. Moreover, Sh. Sukhbir Singh had also executed a Will dated 03.05.1982, which was also duly registered. He also sworned an affidavit confirming the fact of handing over the suit property to purchasers under the sale agreement. Therefore, he by a General Power of Attorney dated 03.05.1982 authorised defendant no. 5 to execute the sale deed in respect of suit property. It is stated that perusal of GPA will show that Sh. Sukhbir Singh had given authority to defendant no. 5 to execute the sale deed and that GPA was got attested by the Notary Public and in pursuance to the same, authorities confirmed that defendant no. 5 got the sale deed registered in respect of suit property in favour of defendants no. 1 to 4. Moreover, defendants no. 1 to 4 had also purchased the adjacent land of Khasra no. 338 measuring 19 biswas from one Sh. Ram Singh vide registered sale deed dated 18.05.1985 and 01.05.1985 and thereafter defendants amalgamated the above said two plots of land in one block by demolishing the intervening boundary wall. As such, entire land measuring 1 bigha and 18 biswas was converted into a plot, in which defendants have planted trees of safeda, kikar, Page 6 of 38 CS-27/13/05 7 neem, etc.. It is also pleaded that after purchasing the suit property, defendants have applied for mutation of property in their name and mutation was duly sanctioned on 28.03.1989 and entire plot of land in question in khasra no. 387 was mutated in favour of defendants no. 1 to 4 and before mutating the names of defendants, Naib Tehsildar duly intimated Sh. Sukhbir Singh (father of plaintiffs) about the mutation proceedings and a public notice was also issued to him before effecting the mutation but Sh. Sukhbir Singh chose not to contest those proceedings. Therefore, mutation was validly effected in favour of defendant no. 1. Khasra girdawaris regarding property in question also show the actual physical possession of defendants and this fact was very much in the knowledge of plaintiff. It is also pleaded that earlier Sh. Sukhbir Singh had tried to play mischief with defendants no. 1 to 4 and fraudulently executed a sham sale deed in favour of his wife Smt. Lakshmi Devi by transferring their land also including suit land and his dishonest intentions prevailed upon the Revenue Authorities when concerned Naib Tehsildar misled and effected the mutation upon the mis representation of Sh. Sukhbir Singh and thereafter upon noticing the mistake, the matter was referred to Revenue Assistant/SDM, Punjabi Bagh for setting the record right and for cancellation of mutation in favour of Lakshmi Devi and in those proceedings, plaintiffs herein were parties and Ld. Revenue Assistant vide order dated 29.10.1991 set aside the Page 7 of 38 CS-27/13/05 8 mutation order no. 168 & 529 dated 17.08.1987 and 19.09.1989. While disputing the claim of plaintiffs that they came to know about sale deeds and GPA dated 03.05.1982 after obtaining the certified copies from Revenue Authorities, Najafgarh, it is stated that plaintiffs have no title nor they are in possession of the suit property. Moreover, suit is hit by Section 34 of the Specific Relief Act and plaintiff have suppressed many material facts and thus, are guilty of misrepresentating the material facts. It is also stated that it is only when replying defendant Sh. Sukh Chand Jain received information that plaintiffs alongwith other associates are trying to cut the standing trees on the suit property, then, defendant no. 1 telephoned the police and police went to the spot on 26.02.2005 and made enquiries and met with plaintiff no. 1 and other people of village and in that enquiry, plaintiff acknowledged the right, title and interest of defendant in respect of the suit property. As such, the suit of the plaintiffs is false and vexatious. While taking other preliminary objections and denying the case of the plaintiffs on merits, it is stated that plaintiffs have no interest in the suit property nor they are in possession of the same.
3. Following issues were framed vide order dated 18.02.2012:
1. Whether the plaintiff has no locusstandi to file the present suit as he has no right, title or interest in the suit land in view of the Page 8 of 38 CS-27/13/05 9 preliminary objection No. 1 of the WS of the defendants No. 1 to No. 4 ? OPD
2. Whether the plaintiff had concealed material facts ? If so, to what effect ? OPD
3. Whether the plaintiff are not in possession of any part of suit land and defendant is in its possession since 1985 ? OPD
4. Whether the suit is not maintainable as per Section 34 of the Specific Relief Act ? OPD
5. Whether the suit is not in accordance with the provisions of Order 7 Rule 6 CPC ? If so, to what effect ? OPD
6. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction ? OPD
7. Whether the suit is hit by the principle of resjudicata in view of the preliminary objection No. 11 ? OPD
8. Whether the suit is without cause of action ? OPD
9. Whether the suit of the plaintiff is barred by the limitation ? OPD
10. Whether the plaintiff is entitled for decree of declaration as prayed for ? OPP
11. Whether the plaintiff is entitled for decree of permanent injunction as prayed for ? OPP
12. Relief.
Page 9 of 38 CS-27/13/05 10
4. Plaintiff examined six witnesses in his evidence in support of his case.
5. Plaintiff no. 2 entered into the witness box and deposed as PW1 on the lines of the plaint. However, he made an addition in his affidavit by stating that the father of the plaintiff Sh. Sukhbir Singh sold a portion of agricultural land to the persons belonging to adjacent village, namely, Dichaon Kalan, Delhi and the remaining land was transferred by him in the name of his wife Smt. Laxmi. Further, it is stated that the transfer of land in favour of his wife Smt. Laxmi was made by way of registered Sale Deed in 1987 itself. This fact was not stated by the plaintiff anywhere in the plaint and was stated first time in the affidavit of PW1 after the defendant had commented upon the said transfer of land by the father of the petitioner in favour of his wife.
6. PW2, Sh. Ranbir Singh, Patwari, Revenue Office, SubDivision, Najafgarh, South West Zone, Delhi, brought the khatoni in respect to suit property for the year 198485, according to which name of Sh. Sukhbir Singh was entered in the column of ownership. However, this witness was not allowed to place on record the photocopy of the record brought by him because it was well within the reach of the plaintiff to obtain the certified copy of khatoni and place the same on record. During cross Page 10 of 38 CS-27/13/05 11 examination, this witness admitted the sale by Sh. Sukhbir Singh in favour of Sh. Sukh Chand Jain and S. Amrit Chand Jain with respect of half of the land in question on 28.03.1989. Further, it is stated that at present, according to the record, name of Sh. Sukh Chand Jain, Sh. Amrit Chand Jain, Sh. Akesh Chand Jain and Smt. Anju Jain are mentioned in the column of ownership of khatoni.
7. PW3, Sh. Daya Nand Girdawar, Office Janungo, Tehsil Najafgarh, Delhi, brought the certified copy of mutation order dated 19.09.1989 Ex. PW3/1, according to which mutation was effected from Smt. Laxmi Devi in favour of her sons. However, during crossexamination, this witness admitted that there is no document on record to prove the ownership of Smt. Laxmi Devi in khatoni or sale deed.
8. PW4, Sh. Suraj Bhan, who is also resident of village Mitraon, Delhi and holding agricultural lands as well as residential and other houses deposed in support of the petitioner. During crossexamination, this witness admitted that his name is recorded in respect of his land, which was allotted in lal dora abadi in the khatoni of the village and also in the khasra girdawari. Further, he has also admitted that his khasra girdawari was prepared by the concerned illaka patwari and also that khasra girdawari of Sh. Sukhbir Singh was also prepared by the illaka patwari Page 11 of 38 CS-27/13/05 12 with the similar mode. Further, this witness deposed in contradiction to the statement made by PW1 during crossexamination wherein he stated that no khasra girdawari is being issued in respect of land which is out of extended lal dora area and therefore, question of applying for its correctness does not arise, when this witness was confronted with the khasra girdawari where the name of defendants are shown as the owners of the suit property.
9. PW5, Sh. Dharam Singh also deposed on the lines of PW4.
10. PW6, Sh. Tek Chand from Revenue Record Room, Tis Hazari, SBI Building, Delhi, brought the summoned record pertaining to file bearing no. 120/91 titled as "Akesh Chand Vs. Sukhbir Singh" and stated that he has no personal knowledge about the record brought by him.
11. At this stage, petitioner's evidence was closed vide order dated 31.01.2007 vide separate statement of Ld. Counsel for the plaintiff.
12. On their turn, defendants examined as much as nine witnesses in their evidence in support of their contentions.
13. DW1, Sh. Dayanand, Office Kanungo, Tehsil Najafgarh, South Page 12 of 38 CS-27/13/05 13 West Delhi, brought the mutation file bearing no. 1401/NG/8889 and also file bearing no. 1404/NG/8889. In both the cases, mutation was sanctioned on 28.03.1989 exhibited as Ex. DW1/1 and Ex. DW1/3. Further, he also relied upon the following documents:
a) Copy of order dt. 29.10.1991 : Ex. PW6/D1
b) Copy of the mutation file no. 1401 : Ex. DW1/1
c) Certified copy of mutation order : Ex. DW1/2 dt. 18.03.1989
d) Copy of the Mutation file no. 1404 : Ex. DW1/3
e) Copy of mutation order 1404 : Ex. DW1/4
f) Copy of Masawai/akshisra : Ex. DW1/5
g) Copy of the C.A. application no. 1110 : Ex. DW1/6
h) Copy of C.A. application no. 1113 : Ex. DW1/7
i) Khasra Girdawari for the year 199798 : Ex. DW1/8
j) Khasra Girdawari for the year 199899 : Ex. DW1/9
k) Khasra Girdawari for the year 19992000: Ex. DW1/10
14. During cross examination, this witness admitted that he had issued certified copy of the mutation file to Sh. Ramesh Chand and that Sh. Ramesh Chand was very well aware about the said mutation in favour of defendants.
Page 13 of 38 CS-27/13/05 14
15. DW2, Sh. Ranbir Singh, Partwari from the office of SDM, Najafgarh, brought the khasra girdawari register for 200102 to 200506. It is stated that in all khasra girdawari registers, the name of the respondent are shown to be owner of the property. Further, he relied upon the following documents:
a) Khasra Girdawari for the year 200102 : Ex. DW2/1
b) Khasra Girdawari for the year 200203 : Ex. DW2/2
c) Khasra Girdawari for the year 200304 : Ex. DW2/3
d) Khasra Girdawari for the year 200607 : Ex. DW2/4
e) Khasra Girdawari for the year 2005 : Ex. DW2/5
f) Khasra Girdawari for the year 200506 : Ex. DW2/6
g) Khasra Girdawari for the year 2007 : Ex. DW2/7
h) Khatoni of village Mitraon : Ex. DW2/8
16. DW3, Sh. M. Kujur, Record Keeper, DC Office, Tis Hazari, Delhi, brought the original consolidation file of village Mitraon, Delhi and further, relied upon certified copies from consolidation file exhibited as Ex. DW3/1 to Ex. DW3/3.
17. DW4, Sh. Raj Kumar Mishra from Shivaji College brought the service book of father of the plaintiff and got exhibited photocopy of documents in the service book as EX. DW4/1 to Ex. DW4/7. Page 14 of 38 CS-27/13/05 15
18. DW6, Sh. Amrit Chand Jain deposed on the lines of written statement and further relied upon the following documents:
a) Khasra Girdawari for the year 200102 : Ex. DW6/1
b) Khasra Girdawari for the year 200001 : Ex. DW6/2
c) Khasra Girdawari for the year 200304 : Ex. DW6/3
d) Khasra Girdawari for the year 200405 : Ex. DW6/4
e) Khasra Girdawari for the year 200506 : Ex. DW6/5
f) Khasra Girdawari for the year 200607 : Ex. DW6/6
i) Khasra Girdawari for the year 2007 : Ex. DW6/7 j) Copy of Akshisra : Ex. DW6/8
k) Sale Deed dated 11.05.1985 : Ex. DW6/9
l) Sale Deed dated 18.05.1985 : Ex. DW6/10
m) Receipt dated 26.07.1980 : Ex. DW6/11
n) Supplement agreement dt. 12.04.1982 : Ex. DW6/12
o) Affidavit dated 12.04.1982 : Ex. DW6/13
p) Receipt dated 03.05.1982 : Ex. DW6/14
q) Will dated 03.05.1982 : Ex. DW6/15
r) GPA dated 03.05.1982 : Ex. DW6/16
s) Lal Dora Certificate : Ex. DW6/18
19. DW7, ASI Chandu Lal got exhibited compliant made on telephone call on 26.01.2005 and got exhibited DD Nos. as Ex. DW7/A & Ex. Page 15 of 38 CS-27/13/05 16 DW7/B.
20. Sh. Balbir Singh, who was one of the attesting witness to the Agreement to Sell executed between the father of the petitioner and Sh. Dhyan Singh and Sh. Hazara Singh deposed as DW7. He also identified signatures of Sh. Dhyan Singh, Sh. Hazara Singha and Sh. Sukhbir Singh on Agreement to Sell Ex. DW6/12. This witness was also attesting witness to GPA, which was executed in favour of Sh. Dhyan Singh by Sh. Sukhbir Singh. He also identified signatures of Sh, Dhyan Singh and Sh. Sukhbir Singh on the said GPA as well. He also identified signatures of Sh. Sukhbir Singh on the Will and on receipt of payment dated 26.07.1980.
21. DW8, Sh. B. N. Srivastava, Handwriting Expert, who examined the signatures of Sh. Sukhbir Singh on the alleged Agreement to Sell, Receipt of payment dated 26.07.1980, Will and GPA in comparison to the admitted signatures of Sh. Sukhbir Singh in his service book of Shivaji College deposed that the disputed signatures of Sh. Sukhbir Singh on the abovesaid documents are genuine and written by the writer of the admitted signatures. He was crossexamined at length by counsel for the plaintiff.
Page 16 of 38 CS-27/13/05 17
22. Sh. Sunder Singh, who was also present at the time of execution of GPA as well as Will also deposed on the lines of written statement as DW8.
23. DW9, Sh. Hazara Singh also deposed on the lines of written statement filed by the defendants.
24. I have heard the arguments addressed by counsel for the parties and have also gone through the judicial record. My issuewise findings are as under: Issue no. 1 : Whether the plaintiff has no locusstandi to file the present suit as he has no right, title or interest in the suit land in view of the preliminary objection No. 1 of the WS of the defendants No. 1 to No. 4 ? OPD
25. The burden of proving this issue has been placed on the defendants no. 1 to 4. It is submitted that firstly the plaintiffs are required to prove their ownership rights over the land in suit. Undisputedly, Shri Sukhbir Singh was the original owner of the suit land. As per the averments made in the plaint, Sh. Sukhbir Singh never sold and transferred the suit land in favour of any person and after his death, the Page 17 of 38 CS-27/13/05 18 plaintiffs being his heirs claim themselves to be the owner in possession. However, contrary to this assertions made in the plaint, admittedly, as per the evidence led by the plaintiffs themselves, Shri Sukhbir Singh sold and transferred the suit land in favour of his wife Smt. Laxmi Devi on 13.07.1987 and a mutation to that effect was effected in the revenue record on 17.08.1987 and thereafter, on the death of Smt. Laxmi Devi, the names of the plaintiffs were mutated in place of Smt. Laxmi Devi. Accordingly, as per the case of the plaintiffs themselves, the claim made by the plaintiffs themselves in their plaint, is falsified by the evidence led by the plaintiffs themselves in the form of Ex. PW3/1 to Ex. PW3/8 and Ex. PW6/D1 and Ex. PW6/1 (mutation file). Further, it has been amply proved by the defendants no. 1 to 4 that the suit land was sold and transferred in favour of defendants no. 1 to 4 and vide the sale deed Ex. DW6/9 and Ex. DW6/10 executed by him through his attorney Shri Dhyan Singh and the validity of the two sale deeds though challenged in the present suit after lapse of twenty years, but the plaintiffs have failed therein. Further, since the year 1989 till date, the names of the defendants no. 1 to 4 is appearing in the revenue record as the persons bhumidari in possession of the suit land. Vide order dated 29.10.1991, the mutation entered in the revenue record on the basis of the alleged sale deed executed by Shri Sukhbir Singh in favour of Smt. Laxmi Devi was cancelled and the said order was never challenged and as such, it Page 18 of 38 CS-27/13/05 19 stands amply proved that it is the defendants no. 1 to 4 who are the owners in possession of the suit land and continued to be so and as such the plaintiffs have absolutely no right, title or interest in the suit land. Not only the sale deeds but thereafter the khatoni Ex. DW2/8 and khasra girdawaris Ex. DW6/1, Ex. DW6/2, Ex. DW6/4, Ex. DW6/5, Ex. DW6/6, Ex. DW1/8, Ex. DW1/9, Ex. DW1/10, Ex. DW1/1, Ex. DW2/2, Ex. DW2/3 are in the name of the defendants and under Section 114 of the Evidence Act, the entries in the khasra girdawari carries presumption of truth and the same were recorded by the patwari during the course of his official duties and were never challenged by the plaintiffs at any point of time. The veracity of all these revenue records is not the subject matter of the present suit nor this court can sit as an appellate authority against these entries. The plaintiffs have the remedies available against these entries by filing appeal before the Collector of Delhi but no such appeal has been filed till date. Accordingly, the entries made in the revenue record are to be taken at their face value by this court and no exception can be taken against all such entries. Further, as per Section 30 of the Delhi Land Revenue Act, these entries carry presumption of truth.
26. As the plaintiffs have failed to prove their ownership in respect of the suit land or the possession, accordingly, it has been held that the plaintiffs have no locus standi to file the present suit. Hence, this issue is Page 19 of 38 CS-27/13/05 20 decided against the plaintiffs and in favour of the defendants. Issue no. 2 : Whether the plaintiff had concealed material facts ? If so, to what effect ? OPD
27. The following facts have been suppressed by the plaintiff from their suit:
1) That before effecting mutation in favour of the defendants no. 1 to 4, the Tehsildar issued notice in the name of Sh. Sukhbir Singh and also notice to the general public in the village and it was thereafter the order dated 28.03.1989 was passed. Copies of these notices were duly obtained by the plaintiffs but they did not file the same in the Hon'ble Court alongwith the suit and have suppressed them.
2) The plaintiff though pleaded in the plaint that Sh. Sukhbir Singh never sold land to anyone during his lifetime and they are claiming title to the land on the basis of heirship but the evidence led by the plaintiff themselves shows that Sh. Sukhbir Singh executed a Sale Deed regarding suit land in favour of his wife Smt. Laxmi Devi on 17.08.1987 and on the basis of which a mutation was got effected in the revenue record in favour of Smt. Laxmi Devi and after her death the mutation was got effected by the plaintiffs and that both Page 20 of 38 CS-27/13/05 21 these mutation orders were recalled and cancelled by the revenue assistant after a due notice to the plaintiff. All these facts have been suppressed from the plaint.
3) Another important fact was also suppressed by the plaintiffs that the plaintiff no. 1 Shri Ramesh Chander appeared before the police on 27.01.2005 and made a statement that the suit land is that of Sukh Chand Jain and that they do not claim any interest in the land and that they have not cut any tree from the suit land (Ex. DW7/C).
4) That the plaintiff also suppressed from the plaint that the khasra girdawari regarding suit land are in the name of defendants no. 1 to 4 and the same were never challenged by them.
28. All the above facts are material facts and they have direct bearing on the competency of the plaintiffs to file the present suit but the same were suppressed knowingly and deliberately. It is a settled preposition of law that with the suppression of these facts and the plaintiff not coming with clean hands is not entitled discretionary relief of declaration or of injunction. Accordingly, this issue is also decided in favour of the defendants and against the plaintiffs.
Page 21 of 38 CS-27/13/05 22 Issue no. 3 : Whether the plaintiff are not in possession in any part of suit land and defendant is in its possession since 1985 ? OPD
29. The burden of proving of this issue has been placed on the defendants. Actually, it was for the plaintiffs to prove their ownership as well as possession in respect of the suit land on the date of filing of the suit, but they have failed to prove the same as will be discussed hereinafter. However, it is submitted that vide the Sale Deed Ex. DW6/9 and Ex. DW6/10, the land in suit was sold and transferred by Shri Sukhbir Singh acting through his duly appointed attorney Sh. Dhyan Singh vide GPA Ex. DW6/16. This GPA is duly attested by Notary Public and as such under Section 85 of Evidence Act, there is a presumption that the said attorney was duly executed by Shri Sikhbir Singh.
30. No contrary evidence to disprove the execution of the GPA Ex. DW6/16 by Shri Sukhbir Singh has been led in the case. The defendants have led oral evidence of DW7, DW8 and DW9 to prove that the said GPA was duly executed by Shri Sukhbir Singh. Not only this, DW8 Shri B. N. Srivastava handwriting expert by comparing the signature of Shri Sukhbir Singh on GPA Ex. DW6/16 Ex. DW6/16 with the admitted signatures appearing on the documents EX. DW3/2 to Ex. DW3/8 and of Page 22 of 38 CS-27/13/05 23 Ex. DW4/1 to Ex. DW4/7 has categorically opined that the signature appearing on both these documents are one of the same person. Accordingly, it has been amply proved on record that the GPA Ex. DW6/16 was duly executed by Shri Sukhbir Singh.
31. The only plea taken by the plaintiffs in their plaint is that Shri Dhyan Singh had no right or authority to execute the Sale Deed regarding land in suit in favour of defendants no. 1 to 4 on account of the fact that Ex. DW6/16 has been unregistered document. In this behalf, it is stated there is no requirement of law either under the Registration Act that a power of attorney holder who executes the Sale Deed on behalf of principle, the GPA must be registered one. Reference may be had to judgments cited as : (2009)14 SCC 782 AIR 2013 Gujrat 9 AIR 2013 Punjab 216
32. It is settled law that possession follows title and as such the defendants no. 1 to 4 in law are to be treated in possession of the suit land. In view of the fact that the possession of the suit land was delivered to them under the two Sale Deeds Ex. DW6/9 and Ex. DW6/10. Not only this, their possession used to be recorded by the Halqa Patwari Page 23 of 38 CS-27/13/05 24 in the annual record, i.e., in the khasra girdawari. The plaintiffs have filed on record certified copies of the khasra girdawari which has been exhibited in the case as Ex. DW1/8 to Ex. DW1/10, Ex. DW2/1 to Ex. DW2/7, Ex. DW6/1 to Ex. DW6/7. In all these khasra girdawaris the defendants no. 1 to 4 have been recorded as the persons bhumidar in possession of the suit land which also proves their possession on the suit land since the date of execution and registration of the above mentioned Sale Deeds in their favour. This Court in the present case is not required to find out the veracity of khasra girdawari by acting as a appellate court under the Delhi Rent Control Act and has to treat them on their fact value as has been held in case reported as 1989 (2) RRR 507 SC. Further, the plaintiffs are estopped from claiming title over the suit land as their father had already sold the same in favour of the plaintiff during his lifetime.
33. In the plaint the plaintiff pleaded that their father have constructed a boundary wall over the aforesaid land measures 19 biswas. The plaintiffs filed a plan of the suit land which site plan does not tally with the akshisra Ex. DW1/5. Even in the plan filed by the plaintiffs, the boundary wall has been shown as a continuous boundary wall over the entire area of 1 bigha 18 biswas and there is no boundary wall separating the suit land which measures 0.19 biswas only. Accordingly, the case of the plaintiffs is falsified by the plan filed by them and it was for this reason Page 24 of 38 CS-27/13/05 25 that the plaintiffs did not prove the said site plan in the evidence. Further, DW6 as well as DW9 who is witness to the Sale Deed in question, stated that the possession of the suit land was handed over by Sh. Dhyan Singh to the defendants no. 1 to 4. This fact also proves the possession of the defendants no. 1 to 4 of the suit land.
34. The report of S.I. Chandu Lal Ex. DW7/F coupled with the statement of the plaintiffs before the police Ex. DW7/C, it is crystal clear that on 26.01.2005, it were the defendants no. 1 to 4 who had been in possession of the suit land and this fact was duly admitted by Sh. Ramesh Chand in his statement before the police.
35. In view of the foregoing unrebutted evidence it stands proved that the plaintiffs were not in possession of any part of the suit land on the date of the filing of the suit and it were the defendants no. 1 to 4 who were in possession of the suit land and thus, the issue is decided in favour of the defendants and against the plaintiffs. Issue no. 4 : Whether the suit is not maintainable as per Section 34 of the Specific Relief Act ? OPD
36. The evidence produced in the case clearly establishes that the Page 25 of 38 CS-27/13/05 26 plaintiffs are not in possession of the suit land and that the defendants no. 1 to 4 are in possession of the suit land in their own rights as bhumidar thereof. The plaintiffs have sought relief of mere declaration and not the relief of possession against the defendants nos. 1 to 4 and as such the present suit is clearly barred under Section 34 of the Specific Relief Act. Hence, this issue is also decided in favour of the defendants and against the plaintiffs.
Issue no. 5 : Whether the suit is not in accordance with the provisions of Order 7 Rule 6 CPC ? If so, to what effect ? OPD
37. The documents of which cancellation has been sought in the present suit are dated 03.05.1982, 11.05.1985 and 18.05.1985 and the present suit has been filed on 17.02.2005 and as such not only prima facie but on the face of it the suit is hopelessly barred by time. Article 58 of the Limitation Act which provides a limitation of 3 years for getting a declaration from the date when such right first accrue to the plaintiffs. In the present case, undisputedly, the suit has been filed after lapse of three years of each of the three documents and as such, the same is barred by time on the face of it. As per provisions of Order 6 Rule 7 CPC plaintiffs were required to plea in their plaints the grounds of exemption or the grounds of extension of the period of limitation for filing the present suit. Page 26 of 38 CS-27/13/05 27 However, nothing has been pleaded in the plaint in that behalf. The provision of Order 7 Rule 6 is mandatory in nature and noncompliance of the same render the suit is bad in law. In support of the plea, the defendant relies upon rulings reported as AIR 1978 Allahbad Page 117. Accordingly, this issue is also decided against the plaintiffs and in favour of the defendants.
Issue no. 6 : Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction ? OPD
38. No evidence has been led with respect to this issue. Issue no. 7 : Whether the suit is hit by the principle of resjudicata in view of the preliminary objection No. 11 ? OPD
39. It is settled law that as per Expression VIII attached to Section 11 CPC, a decision of a court or tribunal of limited jurisdiction also acts as a resjudicata. In the present case as has been proved vide order dated 29.10.1991 the mutation order dated 23.03.1989 were upheld. An appeal lies against the order dated 28.03.1989 and also against the order dated 29.10.1991 but not such appeal or challenge was made by the plaintiffs Page 27 of 38 CS-27/13/05 28 against these orders. Even on coming to know the above facts in the present suit no steps have been taken by the plaintiffs to challenge those orders and as such all those orders are binding upon the plaintiffs and they acts as a resjudicata against the plaintiff. However, it cannot be said that the genuineness of the Sale Deed Ex. DW6/9 and Ex. DW6/10 were directly and substantially in issue in between the parties in those proceeding also and as such the decision taken therein is binding upon the plaintiff and the same now acts as a resjudicata against the plaintiffs. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
Issue no. 8 : Whether the suit is without cause of action ? OPD
40. Under issues no. 1 & 3, it stands proved that the plaintiffs are neither the owners of the suit land nor in possession of the same on the date of filing of the suit and it also stands proved that Shri Sukhbir Singh had sold and transferred the suit land in favour of the defendants no. 1 to 4 vide registered Sale Deed Ex. DW6/9 & Ex. DW6/10. Hence, the plaintiffs have no cause of action to file the present suit. Accordingly, this issue is decided in favour of the defendants and against the plaintiffs. Page 28 of 38 CS-27/13/05 29 Issue no. 9 : Whether the suit of the plaintiff is barred by the limitation ? OPD
41. That the suit is time barred. For deciding this issue the following relevant dates be noted: 03.05.1982 The date of execution of the GPA by Sh. Sukhbir Singh in favour of Shri Dhyan Singh.
11.05.1982 The date of execution of the Sale Deed by shri Dhyan Singh favouring defendants no. 1 to 4 of half share of the suit land.
18.05.1982 The date of execution of another Sale Deed by Shri Dhyan Singh in favour of defendants no. 1 to 4 regarding remaining half share.
28.03.1989 Order of mutation of the Tehsildar, Najafgarh, Delhi for mutating the names of the defendants no. 1 to 4 in place of Shri Sukhbir Singh in the revenue record on the basis of the above document.
13.07.1987 Date of execution of another Sale Deed by Shri Sukhbir Singh in favour of his wife Smt. Laxmi Devi.
17.08.1987 Mutation got entered in the name of Shri Laxmi Devi in place of Shri Sukhbir Singh.
07.09.1988 Laxmi Devi died.
Page 29 of 38 CS-27/13/05 30 19.09.1989 Mutation entered in favour of the plaintiffs in place of Smt. Laxmi Devi.
29.10.1991 Entering of mutation in favour of Smt. Laxmi Devi and also in favour of plaintiffs regarding the land in suit was recalled and cancelled by the Revenue Assistant vide order dated 29.10.1991 Ex. DW6/D1. This was so done by the Revenue Assistant on the basis of document dated 03.05.1982, 11.05.1982, 18.05.1982 and the other dated 28.03.1989. Copies of which are available on the file of the case. The plaintiffs had been parties in those proceedings and as such notwithstanding any other plea of the plaintiffs about coming to know of the sale deeds in question, the plaintiffs are deemed to have come to know about the GPA and Sale Deeds in those proceedings in which order dated 29.10.1991 was passed and as such, they were fully aware of the said fact beyond a period of three years from the date of filing of the present suit.
19972007 Names of the defendants no. 1 to 4 used to be entered in the khasra girdawari as a person bhumidar in possession of the suit land as bhumidar thereof.
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42. The plaintiffs were fully aware about all the above happenings from time to time that their father Shri Sukhbir Singh had already sold the suit land before executing the Sale Deed in favour of his wife. In the plaint, the plaintiffs have simply alleged that the cause of action arose when they got the copies of the above alleged documents from the office kanoongo on 05.02.2005, Najafgarh, Delhi but even that fact has not been proved nor such copies were proved in the case by the plaintiffs. The proceedings of the mutation shows that a notice was issued to Shri Sukhbir Singh and a proclamation was made in the village about the entering the mutations in question as per the prescribed procedure and no objection was filed by Shri Sukhbir Singh or by the plaintiffs at that time. The plaintiff suppressed those documents from this Hon'ble Court after having got certified copies of the documents/copies of the various notices issued by the Tehsildar in that behalf before entering the mutation, from the Revenue Department, Najafgarh, Delhi. They did not file the same with the plaint knowingly and deliberately and suppressed the same from this Hon'ble Court and pleaded otherwise that no notice or proclamation was issued by the NT before entering the mutation, which amounts to concealment of facts and playing fraud with the court as has been held by the Hon'ble Supreme Court in the well known ruling reported as 1994 Supreme Court 853. The defendants no. 1 to 4 have filed certified copies of all such documents which are Ex. DW1/1 to Ex. Page 31 of 38 CS-27/13/05 32 DW1/4. Not only this, the file was got produced by the plaintiffs themselves by PW6 with regard to the proceedings regarding cancellation of the mutation favouring Smt. Laxmi Devi and thereafter, favouring the plaintiffs. This file clearly shows that all the required information for filing such a suit as has been now alleged after lapse of about 15 years was available to the plaintiffs at that time and they were fully aware of the same as it was only on the basis of those documents, the mutation order favouring Smt. Laxmi Devi and the plaintiff was recalled and cancelled by the Revenue Assistant and as such, the limitation for filing a suit of the nature which has been now filed started at least arose w.e.f. 29.10.1991 and as such, the present suit is hopelessly barred by time. Even otherwise, with the coming up all the above events, and also subsequent documents as has been filed in the present suit by the defendants clearly establish that the plaintiffs were fully aware about the names of the defendants nos. 1 to 4 as owners appearing in the revenue record as the bhumidar in possession of the land in suit.
43. In view of this, the suit filed by the plaintiffs is hopelessly time barred. Hence, this issue is also decided in favour of the defendants and against the plaintiffs.
Page 32 of 38 CS-27/13/05 33 Issue no. 10 : Whether the plaintiff is entitled for decree of declaration as prayed for ? OPP
44. To get this relief, the plaintiff are required to prove that the GPA dated 03.05.1982 was not executed by their father Shri Sukhbir Singh and the same is forged and fabricated document which they have failed to prove due to the fact that the suit against defendant no. 5 Shri Dhyan Singh in whose favour the GPA in question was executed and against whom the said relief relates stands dismissed against the plaintiffs vide order dated 21.07.2005 and no attempt was made by the plaintiffs to set aside the said dismissal. No other suit or proceeding has been initiated against defendant no. 5 by the plaintiffs so far and the remedy if any, against the defendant no. 5 has totally become time barred. In view of this for all intents and purposes the suit against defendant no. 5 stood dismissed or stood abandoned and as such, the plaintiffs suit as regard the above relief for declaration is liable to be dismissed on this ground alone. Even no evidence has been led by the plaintiffs to prove that the GPA dated 03.05.1982 does not bear the signature of Shri Sukhbir Singh. Further, the dismissal of the suit tentamounts to abondment of the lis from the court and as such it is to be treated that the plaintiffs have failed to show that the GPA was not executed by Shri Sukhbir Singh. Page 33 of 38 CS-27/13/05 34
45. Further, the plaintiffs have sought cancellation of the two sale deeds dated 11.05.1985 and 18.05.1985 which were executed by Shri Dhyan Singh defendant no. 5 on the basis of GPA dated 03.05.1982 executed by Shri Sukhbir Singh in his favour. As the claim of declaration with regard to the GPA is liable to be dismissed consequently the legality, validity and genuineness of the above two sale deeds executed by Sh. Dhyan Singh on the basis of GPA dated 03.05.1982 executed by Shri Sukhbir Singh becomes beyond challenge and as such, the plaintiffs are not entitled to this relief also. The suit of the plaintiff is liable to be dismissed for this relief.
46. Even otherwise, in order to have the aforesaid relief, the plaintiffs are required to file the certified copies of the two sale deeds coupled with the GPA and to prove that the same does not bear the signatures of Shri Sukhbir Singh or his GPA holder and were not executed by Shri Sukhbir Singh who was the original owner of the land in suit, but the plaintiffs neither filed any such copies nor any document in support of their case nor produce any contrary evidence that Shri Sukhbir Singh had not executed the relevant documents. Oral statement of PW1 has no value in the eyes of law when documentary evidence was required to be produced. In the absence of any evidence to this effect led by the Page 34 of 38 CS-27/13/05 35 plaintiffs, it may be held that the plaintiffs have failed to prove their case and as such, are not entitled to the relief claimed in that behalf.
47. Without prejudice to the above submission, it is submitted that the defendants no. 1 to 4 in order to prove that the plaintiffs have no locus standi to file the present suit as their father had already sold the land in suit in favour of defendants no. 1 to 4 have proved the execution of the GPA dated 03.05.1982 in favour of Shri Dhyan Singh, which has been exhibited as Ex. DW6/16 in the case. Further, witnesses Sh. Balbir Singh DW7 and Shri Sunder Singh DW8 who are attesting witnesses to the GPA Ex. DW 6/16 have testified before this Hon'ble Court about the execution of the GPA by Shri Sukhbir Singh in their presence and identified the signatures of Shri Sukhbir Singh on the said documents. Further, the signatures appearing on the disputed GPA Ex. DW6/16 were compared by the handwriting expert DW8 with the admitted signature appearing on documents Ex. DW3/1, Ex. DW3/2, Ex. DW3/3, Ex. DW4/1 to Ex. DW4/7 and has categorical opined that the signatures appearing on the disputed document as well as on the admitted document Ex. DW6/16 etc. are of the same person. A very lengthy crossexamination was conducted by the plaintiffs on this witness but nothing came out from the crossexamination and the testimony of DW8 has not been shaken in any way whatsoever. Even otherwise a bare look at the disputed Page 35 of 38 CS-27/13/05 36 signatures as well as on the admitted signatures reveals itself that they are in the handwriting of one of the same person and could not have been in the handwriting of two different persons. Further, the signature of Shri Sukhbir Singh appearing on other documents Ex. DW6/11 to Ex. DW6/15 also shows that these signatures are of the same person. There is absolutely no remote possibility to forge so many signatures of Sh. Sukhbir Singh nor there was any need for doing so and to file the same in the Hon'ble Court as there was absolutely no necessity for carrying out that exercise. Accordingly, it may be held that the sale deeds Ex. DW6/9 & DW6/10 were executed by Shri Dhyan Singh vide the authority conferred upon him by Shri Sukhbir Singh vide GPA Ex. DW6/16. Even otherwise, there is a presumption in law that a power of attorney attested by notary public was duly executed by the executant and the notary public had satisfied himself before attesting the GPA about the identity of the executant.
48. The plaintiffs have further pleaded that the GPA Ex. DW6/16 is not a registered document and as such Shri Dhyan Singh was not competent to execute and get registered the required sale deed in respect of the suit land on behalf of Shri Sukhbir Singh in favour of defendants no. 1 to 4. In this behalf, it is stated that the plaintiffs have totally failed to site any provisions of law which may require that only a registered power of Page 36 of 38 CS-27/13/05 37 attorney holder can execute a sale deed on behalf of his principle. It is settled preposition of law that a General Power of Attorney is not required to be compulsory registrable and as such a unregistered power of attorney holder is fully competent to execute a Sale Deed for and on behalf of the principle though the power of attorney may have not been registered.
49. No other infirmity has been pointed out in the execution and registration of the sale deeds Ex. DW6/9 and Ex. DW6/10 and as such, the plaintiffs are not entitled to the relief of declaration in respect of these two sale deeds. Hence, this issue is also decided against the plaintiffs and in favour of the defendants.
Issue no. 11 : Whether the plaintiff is entitled for decree of permanent injunction as prayed for ? OPP
50. This issue is consequential issue to the issues no. 9 & 10 and other related issues, wherein the plaintiffs were required to prove that the sale deeds were not executed by Shri Sukhbir Singh and that they have been in possession of the suit land. Under those issues, it has been crystal clear that the sale deeds in question were duly executed by Shri Sukhbir Singh and the possession of the land was also delivered to the Page 37 of 38 CS-27/13/05 38 defendants no. 1 to 4 and they have been in possession of the suit land since the date of purchase. The plaintiffs are not entitled to the relief of injunction simplicitor in the present suit. Under issue no. 3, it has also been proved that the plaintiffs have not come with clean hands and they have suppressed material facts from this Court and have no cause of action to file the present suit. Accordingly, this issue is decided against the plaintiffs and in favour of the defendants.
Relief.
51. The evidence led in the case clearly establishes that the plaintiffs knowingly have filed the present false suit on absolutely false allegations in order to grab the suit land which their father had already sold to the defendants no. 1 to 4. Accordingly, the suit filed by the plaintiff is ordered to be dismissed. No order as to cost.
Announced in open Court (Namrita Aggarwal) on 13th Day of November, 2014. CCJ cum ARC1 (Central) [This judgment contains 38 pages.] Tis Hazari Courts, Delhi.
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