Delhi District Court
Manphool Singh And Ors vs Ram Chander And Ors on 27 September, 2025
IN THE COURT OF MS. SHILPI M JAIN : DISTRICT JUDGE-05,
SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI
Civil Suit No. 312/2017
CNR No. DLSW010028492016
IN THE MATTER OF :
MANPHOOL SINGH (SINCE DECEASED)
Through LR.
1. SH. KRISHAN KUMAR
S/o Shri Surat Singh
R/o 87, Sadhwada, Khaira Village, Delhi
2. SMT. CHANDRAPATI (DECEASED)
W/o Late Shri Hukam Chand
Through Legal Representatives:
(i) Ram Kumar (Son)
(ii) Subhashish (Son)
(iii) Karan Singh (Son)
All R/o House No. 37, Village Baghanki,
Tehsil Manesar, District Gurugram, (Hayana)
iv) Smt. Sumitra (Married Daughter)
W/o Shri Mange Ram
R/o Village Gokalpur, P.O. Jant
Dist. & Tehsil Rewari (Haryana) ................PLAINTIFFS
VERSUS
1. RAM CHANDER (SINCE DECEASED)
Digitally
signed by Through Legal Heirs
SHILPI SHILPI M
JAIN
M Date:
JAIN 2025.09.27
16:07:44
+0530
CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 1 of 62
i) Ram Avtar (Son)
ii) Ramesh (Son)
Both R/o RZ-16, Ph. 3, V-A Block,
Prem Nagar, Najafgarh, Delhi-110043
iii) Vimla (Daughter)
W/o Sh. Lillu Vaday
R/o Kamruddin Nagar, Johad Wala Mandir,
Near Deepanshu Public School,
Nangloi, Delhi.
iv) Kamlesh W/o Rohtash
R/o VPO Chamanpura, Tehsil Beri,
District Jhajjar, (Haryana)
2. RATAN SINGH (SINCE DECEASED)
Through Legal Heirs
i) Smt. Leelawati (Daughter)
D/o Late Shri Ratan Singh
(ii) Smt. Premwati (Daughter)
D/o Late Shri Ratan Singh,
(iii) Smt. Shakuntla (widow of predeceased son)
W/o Late Sh. Raj Singh
(iv) Sh. Manoj Singh (son of predeceased son)
S/o Late Sh. Raj Singh
(v) Sh. Vipin Kumar (son of predeceased son)
S/o Late Sh. Raj Singh
(vi) Smt. Kavita (daughter of predeceased son)
D/o Late Sh. Raj Singh
(vii) Smt. Sunita (daughter of predeceased son)
D/o Late Sh. Raj Singh
Digitally
(viii) Smt. Sarita (daughter of predeceased son)
signed by
SHILPI M
SHILPI JAIN
D/o Late Shri Raj Singh
M JAIN Date:
2025.09.27
16:08:02 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 2 of 62
+0530
All R/o RZ-249, Lane No. 9,
Block-C, Prem Nagar, Najafgarh,
New Delhi 110043
3. MEER SINGH (SINCE DECEASED)
Through Legal Heirs
i) Smt. Vidya Devi (Widow)
W/o Late Shri Meer Singh
ii) Sh. Diler Singh (Son)
S/o Late Shri Meer Singh
iii) Sh. Dilbagh Singh Yadav (Son)
S/o Late Shri Meer Singh
iv) Smt. Suman (Daughter)
D/o Late Shri Meer Singh
All R/o RZ-12A, Phase-III,
Prem Nagar, Najafgarh, South-West,
New Delhi-110043.
4. RAGHUBIR SINGH (SINCE DECEASED)
Through Legal Heirs
i) Smt. Saraswati (Widow)
(ii) Sh. Ashok Kumar (son)
(iii) Sh. Vijay Kumar (son)
(iv) Sh. Ajay Kumar (son)
All R/o H.No. 8. MR Block Prem Nagar,
Najafgarh, Delhi-110043
Digitally
v) Smt. Meena Yadav (Daughter)
signed by
SHILPI M
SHILPI JAIN R/o Flat No. 45, Jagdamba Apartment
M JAIN Date:
2025.09.27
16:08:07
+0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 3 of 62
Sector-13, Rohini, New Delhi-110085 .............DEFENDANTS
Date of institution of the suit : 19.05.2009
Final Arguments heard on : 10.09.2025
Date of Judgment : 27.09.2025
SUIT FOR PARTITION OF IMMOVABLE PROPERTY,
DECLARATION/INJUNCTION
JUDGMENT :
INDEX FACTUAL BACKGROUND .........................6 WRITTEN STATEMENT ..............................9 ISSUES ......................12 EVIDENCE GIVEN BY PARTIES ......................12 SUBMISSIONS MADE ON BEHALF OF .............................15 PARTIES ISSUEWISE ANALYSIS & FINDINGS ......................27
- Over Riding effect of Amendment of ............................33 HSA 2005 over the provisions of Section 50 of the DLR Act
- Plaintiff No. 2's Rights/Share qua such ............................37 property
- 'Partition' is a re-distribution or ............................40 adjustment of pre-existing rights
- Law on Adoption Prior to Hindu ............................41 Adoption & Maintenance Act, 1956 ............................50
- Analysis of "Bhami Faisla"
- Whether finding of Probate Court is Res ............................53 Judicata for Civil Court Digitally signed by SHILPI M - Applicability of Doctrine of Estoppel ............................57 SHILPI JAIN M JAIN Date:
2025.09.27 16:08:14 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 4 of 62
- Legal Representative within the meaning ..........................58 of -Order XXII Rule 3 CPC vis-a-vis Legal Heir as specified in Hindu Succession Act CONCLUSION ....................60
1. Plaintiff filed the present suit for partition and permanent injunction for plot measuring 7,000 sq. yards originally described in Revenue record as part of rectangle no. 30 Kila no. 1/3 (2 bigha 15 Biswas) and Kila No. 10 (4 Bigha 5 Biswa) falling in the revenue estate of village Najafgarh (hereinafter referred as 'suit property') against the defendant with the following relief:
a) declare that each of plaintiffs have 1/6th undivided share in suit property consisting of plot of land measuring 7000 sq. yds. described as Munshi Ram Krishi Farm, Papravat Road, Nazafgarh, Delhi, originally described in Revenue Records as part of Rectangle No. 30 Kila No. 1/3 (2 Bigha 15 Biswas) and Kila No. 10 (4 Bigha 5 Biswas) falling in the Revenue Estate of Village Nazafgarh and by way of consequential relief restraining defendants from dispute and affecting plaintiffs above described share in the suit property in any manner;
b) decree of partition and possession in respect to plaintiffs above described share of 1/6th each in suit property described as Munshi Ram Krishi Farm, Papravat Road, Nazafgarh, Delhi, originally described in Revenue Records as part of Rectangle No.30 Kila No. 1/3 (2 Bigha 15 Biswas) and Kila No. 10 (4 Bigha 5 Biswas) falling in the Revenue Estate of Village Nazafgarh, by demarcating plaintiffs' share at site against defendants liable jointly and severally; Digitally
c) decree for perpetual injunction thereby restraining defendants from alienating, transferring, encumbering or parting with signed by SHILPI SHILPI JAIN M M JAIN Date:
2025.09.27 16:08:26 possession of plaintiffs' 1/th share (2/6 th belonging to +0530 plaintiff Nos: 1 & 2) in suit property described as Munshi CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 5 of 62 Ram Krishi Farm, Papravat Road, Nazafgarh, Delhi, originally described in Revenue Records as part of Rectangle No.30 Kila No.1/3 (2 Bigha 15 Biswas) and Kila No.10 (4 Bigha 5 Biswas) falling in the Revenue Estate of Village Nazafgarh:
d) award cost of the suit;
e) Pass such further order(s) as considered just, fit, proper and
expedient in the facts and circumstances of the case."
FACTUAL MATRIX
2. Facts of the case which are imperative to adjudicate issues involved in this matter are succinctly recapitulated: The suit property was owned by Sh. Munshi Ram who left for heavenly abode on 27.11.1984 leaving behind 5 sons and 1 daughter. It is further averred that, the above ancestor of the parties, Shri Munshi Ram, owned and possessed substantial landed properties in Delhi, including a rectangular piece of land containing by admeasurement an area 7000 sq.yds., described as "Munshi Ram Krishi Farm", Papravat Road, Nazafgarh, Delhi. It is further averred that, this plot of land in the revenue records originally was described as Rectangle No.30 Kila.
No.1/3 (2 Bigha 15 Biswas) and Kila No. 10 (4 Bigha 5 Biswas) in total having area of 7.0 Bighas in the Revenue Estate of Village Nazafargh, Delhi Administration, Delhi. It is further averred that, this plot is now enclosed by boundary wall, with road abutting on sides of the Plot described in Municipal Records as part of MR Block in said area. It is further averred that, on land area adjoining to above plot, on all sides and in all directions are built up plots, carved of smaller sizes. It is further averred that, the constructed building are assigned municipal numbers and are assessed to property taxes and the development around the above said plot are in the form of partly Digitally signed by SHILPI M approved and partly unapproved colony. SHILPI JAIN M JAIN Date:
2025.09.27 16:08:34 +0530
3. It is further averred that, the above said plot became subject CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 6 of 62 matter of litigation, involving claims by one late Rai Saheb Jyoti Prasad Jain by way of proceedings under Section 84 of the Delhi Land Reforms Act and the counter proceedings by father of the parties Late Shri Munshi Ram under Section 11, 13 & 85 of the Delhi Land Reforms Act, leading to filing of a Writ Petition registered as WP(C) No.362/1983 titled "Shri Munshi Ram Vs. Shri D.K. Dass & 2 Ors." It is further averred that, defendants also filed Probate Case, registered as PC No.872/1993 titled "Ram Chander & Ors. Vs. State & Ors." instituted in the Court of District Judge, Delhi based upon Will dated 08.06.1983 purporting to be in the name of Shri Munshi Ram. It is further averred that, plaintiffs were respondent Nos. 2 & 3 in the probate case and plaintiff no.1 impleaded as LR of deceased petitioner. It is further averred that, the Ld. Additional District Judge, Delhi, vide judgment dated 12.10.1993 dismissed the probate case with costs against petitioners of the probate case and in favour of respondent Nos. 2 & 3 and that the Will claimed was adjudged as non-genuine and an invalidly executed instrument.
It is further averred that, petitioners/defendants herein, preferred an appeal against the judgment passed against them in the Probate Case before Hon'ble High Court of Delhi registered as FAO 13/1994 titled "Bhel Ram Chander & Ors. Vs. State & Ors" and the said appeal was dismissed on 08.01.2008 for want of prosecution and thereafter, notice of application for restoration filed by defendants is received by appellant.
4. It is further averred that, the writ petition was allowed vide judgment dated 29.07.2004 and it was decided by Hon'ble Court while allowing the writ petition that petitioner Munshi Ram's cultivatory possession was adverse to other claimants and the case stated by father of parties, under Section 85 of the Delhi Land Reforms Act was held to succeed and that the Digitally signed by SHILPI SHILPI JAIN M Rule ordered in the writ petition was made absolute. It is further averred that, M Date:
JAIN 2025.09.27 16:08:40 the order dated 03.11.1980 passed by Revenue Assistant was restored and +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 7 of 62 subsequent orders dated 17.05.1982 and 13.08.1982 passed by Additional Collector and Financial Commissioner respectively were ordered to be quashed. It is further averred that, the review application filed by respondent No. 3 described in the writ petition registered as RA No.37/2008 was dismissed by Hon'ble Court vide judgment/order dated 25.01.2008 and the Letters Patent Appeal No. 436/2008 was dismissed by Hon'ble Court vide judgment/order dated 24.11.2008. It is further averred that, the plaintiff No.1 was described as LR No.1 of late Shri Munshi Ram. Plaintiff No.2 was not described as party in such proceedings on the assertion that under the provisions of the Delhi Land Revenue Act, a female member did not succeed to estate of her father. The right of plaintiff no. 2 to claim share in property of the father is recognized by amendments to the Hindu Succession Act vide Amendment Act No. 39/2005 in force w.e.f. 05.09.2005
5. It is further averred that, after conclusion of above described proceedings between the parties, during month of February 2009, defendants started erecting divisions in above plot by laying low height walls in manner showing exclusion of plaintiffs' share in the plot and when defendants were asked to refrain from doing so, they asserted that they alone are entitled to share above plot amongst them, therefore, to enforce their rights in suit property, plaintiffs file the present suit.
6. It is further averred that, defendants jointly or individually are entitled to hold undivided interest in suit land by sharing same with the plaintiffs and each defendant holding only 1/6th undivided share in suit property so far, on the pretext of having erected walls for claiming partition, are not entitled to alienate, transfer, encumber or part with possession of suit Digitally signed by property in a manner without consent and concurrence of plaintiffs and that SHILPI M SHILPI JAIN M JAIN Date: such action of defendants besides being illegal affects and jeopardize 2025.09.27 16:08:46 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 8 of 62 plaintiff's legal rights in the suit property and defendants are liable to be restrained as prayed in the suit.
7. It is further averred that, though the plot of land is in open state, enclosed with boundary walls, each of the party is in possession of the plot, plaintiffs seek partition of above plot in accordance with shareholding above described and demarcate possession of their share in above plot so as to use/possess their share in the plot without interference and obstruction from either of the parties abovesaid.
WRITTEN STATEMENT
8. In WS, defendants stated that there are 33 years of litigation starting with R. S. Jyoti Prashad Jain claiming the land in question as his and illegally occupied by Sh. Munshi from whom he claimed damages by Case No.24/RA/75 u/s 84 of the Delhi Land Reforms Act and Sh. Munshi filing counter case No. 41/RA/75 for declaration of Bhoomidhari rights U/s 11, 13 and 85 of Delhi Land Reforms Act in his favour as the land in question having been purchased from R.S. Joti Prashad and being in his cultivation and possession. It is further stated that, both these cases were decided together by Shri R. Chander Mohan R.A. on 03.11.1980 in favour of Sh. Munshi holding him Bhoomidhar U/s 85 of DLR Act which leads to appeal before ADM who decided in favour of Shri Joti Prashad with further Revision before Financial Commissioner who dismissed the same holding in favour of Sh. Jyoti Prashad which further led to Sh. Munshi filing Civil Writ No. 362/83 where status quo was granted and subsequently made absolute on 27.09.1983. That petitioner Shri Munshi died on 27.11.1984 during the pendency of Writ and an application U/o 22 Rule 3 and 11 and 151 CPC was Digitally signed by filed duly signed/thumb marked by all the parties in this suit alongwith their SHILPI SHILPI M Vakalatnama, the last Will dated 8.6.1983 of late Munshi, which without any JAIN M Date:
JAIN 2025.09.27 16:08:51 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 9 of 62 objection by any party was allowed on 22.05.1985 resulting in the defendants being substituted in place of Sh. Munshi. The same was the position before Revenue Assistant Sh. B.K. Sehgal Revenue Assistant, who also allowed the substitution of defendants by order dated 25.03.85 and on 29.07.2004 this writ petition was allowed by the Hon'ble High Court of Delhi.
9. It is further stated that, Shri Jyoti Prashad having died, an LPA No. 486/2005 was filed by his LR Shri N. K. Jain which was dismissed as withdrawn followed by a Review Application vide filing No. 1271 dated 02.04.2005 which, despite having been withdrawn on 25.08.2006, was alleged to have been misplaced by Registry, which was proved to be a false allegation. It is further stated that, subsequently LRs of Jyoti Prashad despite being left with no right in the land in question on 22.06.2005, fraudulently sold it for a paltry sum of Rs. 6,00,000/- and the purchasers moved R.A. No. 37/2008 which was dismissed by the Hon'ble High Court of Delhi on 25.04.2008. It is further stated that, the LRs of Shri Jyoti Prashad moved another LPA No.436/2008 which was dismissed on 24.11.2008 by the Hon'ble Division Bench (comprising of Hon'ble Chief Justice and Justice S. Muralidhar). It is further stated that, plaintiffs were well in knowledge of the fact that late Shri Jyoti Prashad and his LRs have lost the writ in favour of defendants despite that they mischievously joined hands and connived with LRs of Late Jyoti Prasad to fraudulently add their names with the defendants in order to harass the defendants jointly which is the motivated result of the present suit by plaintiffs, who had nothing to do with the lands in question since the year 1985 when defendants only were substituted in place of their father late Munshi.
Digitally signed by SHILPI SHILPI JAIN M
10. It is further stated that, there is no cause of action in favour of M Date:
JAIN 2025.09.27 16:08:58 +0530 plaintiffs because although plaintiff No.1 Manphool Singh was born in the CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 10 of 62 family of Munshi but he was adopted by Munni whose property he has inherited and plaintiff No. 2 Smt. Chander Pati being a female does not inherit when male members are there as per Section 50 of of the Delhi Land Reforms Act. These facts are borne from the Will of Munshi and otherwise also agricultural land in question being self owned, rights has been given to defendants only, which is legal and valid.
11. It is further stated that, the present suit is barred by law of limitation having been filed after 24 years of consented substitution on 22.05.1985 of defendants only in place of Munshi and abandoned their claim and it is too late in 2009 to raise a highly time barred claim, if any, and as per Section 3 of Limitation Act, shall be dismissed. Further, reliance is placed upon judgment of Lachhman Singh Vs. Hazara Singh (2008) 5 SCC 444 which says "Limitation is question of jurisdiction, Section 3 of the Limitation Act puts an embargo on the Court to entertain the suit, if it is found to be barred by limitation".
12. It is further stated that, the suit is defective and incompetent and be returned for compliance of mandatory legal affidavit as per Order VI Rule 15 CPC, It is further stated that, the lands in question being governed by the Delhi Land Reforms Act, there is no question of ownership only Bhoomidari and ог Asamees rights are granted an that there is no application of Hindu Succession Act. It is further stated that, plaintiff have not approached the court with clean hands and suit is liable to dismissed with heavy cost. In the parawise reply, defendant denied the contents of the plaint.
13. Replication to the written statement of defendants was filed on Digitally behalf of the plaintiff, thereby, reiterating and reaffirming the contents of the signed by SHILPI SHILPI M JAIN plaint.
M Date:
JAIN 2025.09.27
16:09:04
+0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 11 of 62
ISSUES :
14. From the pleadings of parties, following issues were framed by Hon'ble High Court of Delhi vide order dated 28.10.2014:
i) Whether the plaintiffs have 1/6 undivided share each in suit property?
OPP
ii) Whether the plaintiffs are entitled to partition and separate possession of their share in the suit property? OPP
iii) Whether the plaintiffs have no cause of action to file the suit for reasons stated by defendants in para No. 2 of preliminary objections of their written statement? OPD
iv) Whether the suit is barred by limitation as claimed by defendants?
OPD
v) Whether the plaint in the name of plaintiff No. 2 is not properly presented for reasons stated by defendants in Para No. 4 of preliminary objections? OPD
vi) Whether the civil court has jurisdiction to entertain the present suit?
OPD
vii) Whether the plaintiffs are entitled to injunction prayed for? OPP
viii) Whether the suit has not been properly valued for the purpose of Court fee? OPD
ix) Relief.
EVIDENCE GIVEN BY PARTIES
15. In support of his case, plaintiff examined as many as two witnesses. PW1 Manphool Singh tendered his evidence by way of affidavit Digitally Ex. PW1/A before Ld. Local Commissioner and has relied upon following signed by SHILPI SHILPI M JAIN M documents:
Date:
JAIN 2025.09.27 16:09:09 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 12 of 62 SL. PARTICULARS OF DOCUMENTS EXHIBITS/MARK NO.
1. Photographs of the suit land Ex.PW1/1
2. Copy of order in Writ Petition (Civil) Ex.PW1/2 No. 362/1983 dt. 29.07.2024
3. Copy of order dt. 25.04.2008 Ex.PW1/3
4. Certified copy of order dt. Ex.PW1/4 24.11.2008 passed in LPA no.
436/2008 by Hon'ble High Court of Delhi
5. Copy of application u/o 22 Rule 3 & Ex.PW1/5 Sec. 151 CPC
6. Copy of application u/o 22 Rule 3 Ex. PW1/6 & 11 and Sec. 151 CPC
7. Copy of order dt. 12.10.1993 Ex.PW1/7
8. Certified copy of the memorandum Ex.PW1/8 of appeal registered as FAO No. 13/1994
9. Copy of application dt. 13.01.1999 Ex.PW1/9 filed under the provisions of Order 41 Rule 27 CPC registered as C.M. No. 224/1999
10. Reply to the application dt. Ex.PW1/10 13.01.1999
11. Certified copy of order dt. Ex.PW1/11 13.12.2010 vide which FAO no.
13/1994 has been dismissed
16. PW2 Sh. Ram Kumar S/o Smt. Chanderpati tendered his evidence by way of affidavit Ex. PW2/A before Ld. Local Commissioner and has also relied upon the documents already Ex.PW1/1 to Ex.PW1/11.
17. Multiple opportunities were granted to defendants to cross- Digitally signed by examine PW1 and PW2 but, defendants failed to do so on the pretext of non- SHILPI SHILPI M M JAIN Date:
availability of main counsel. Hence, cross-examination of PW1 and PW2 was JAIN 2025.09.27 16:09:16 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 13 of 62 treated as 'Nil' by Ld. Local Commissioner. Simultaneously, Ld. Counsel for plaintiff closed PE and matter was listed for DE. However, defendants did not lead evidence and on 14.05.2015 as none appeared for defendants before the Ld. Local Commissioner, the evidence of the defendants was treated as 'Nil'.
18. Record reveals that, thereafter, defendants moved an application u/o XVIII Rule 17 CPC which was allowed by Ld. Predecessor vide order dated 10.08.2017 subject to cost and thereafter PW1 and PW2 were cross- examined on behalf of defendants and matter was listed for final arguments. However, again an application u/s 151 CPC moved on behalf of the defendants for examining defense witnesses which was allowed subject to cost and an opportunity was granted to the defendants to lead their evidence and to examine one defendant and one summoned witness from the office of BDO, Najafgarh, Delhi. However, during the trial due to outbreak of Covid-19 pandemic as well as stay on present proceedings by the Hon'ble High Court of Delhi due to pending Petitions preferred by plaintiff herein matter could not be proceeded further and during this period concerned defendants have expired. Record further reveals that, vide order dt. 20.09.2024 present court has found defendants entitled to examine private witness namely Sh. Dalip Singh in terms of order dt. 15.04.2019.
19. DW1 Sh. Dilip Singh S/o Late Sh. Girdhari Lal tendered his evidence by way of affidavit Ex.DW1/A. DW1 cross-examined at length by Ld. Counsel for plaintiffs and discharged.
20. DW2 Sh. Ravinder Kumar, Sr. Assistant, BDO Office, South West, Najafgarh, New Delhi-43 examined on behalf of defendants who was a Digitally summoned witness and has brought the summoned record i.e. certified copy signed by SHILPI M SHILPI JAIN of Bhami Faisla dt. 24.06.1961 and same has been exhibited as Ex. DW2/1 M JAIN Date:
2025.09.27 16:09:22 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 14 of 62 +0530 (OSR) and certified copy of Bhami Faisla dt. 26.07.1973, same has been exhibited as Ex.DW2/2 (OSR). However, Ld. Counsel for defendants sought permission of the court to examine DW2 which was allowed. DW2 was examined by Sh. R S Verma, Ld. Counsel for defendants and asked the following question:
Q1. Whether record brought by you is true and correct as per BDO Office record? (Objected to by Ld. Counsel for plaintiffs on the ground that, examination of DW2 is beyond the pleadings. (Objection kept open to be adjudicated at the time of final adjudication) Subject to objection, following answer is taken on record. Ans. Yes.
21. DW2 was cross-examined by Ld. Counsel for plaintiffs and discharged.
22. Thereafter, DE stands closed and matter was listed for final arguments.
23. Arguments heard. Record Perused.
SUBMISSIONS ON BEHALF OF PARTIES 24 It is submitted by Ld. Counsel for plaintiff that, so far as Issue Nos. 3, 4, 5, 6 & 8 are concerned, onus to prove said issues was on Defend- ants, however, none of the defendants have entered in the Witness Box and eventually no Evidence has been led on Issue Nos. 4, 5, 6 & 8 by the Defend- ants, hence, these issues are liable to be decided in favour of the Plaintiffs. It is further submitted that, so far Issue No. 3 qua adoption of Plaintiff No.1 is concerned, it is submitted that the said plea of adoption, was based on the al-
Digitally leged WILL dated 08.06.1983 as pleaded in Preliminary Objection No.2 in signed by SHILPI SHILPI JAIN M WS which WILL has already been discarded/rejected while disapproving the M Date:
JAIN 2025.09.27 16:09:27 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 15 of 62 +0530 alleged claim of Adoption of Plaintiff No.1 vide judgment/order dated 12.10.1993 (Ex. PW-1/7). It is further submitted that, the said Judgment and order which rejected the WILL and plea of alleged adoption has already at-
tained finality and that the re-agitation of said plea is otherwise barred by principles of Res-judicata in view of the Pronouncement by Division Bench of Hon'ble Madras High Court in case titled as "Alagammai and 4 others Vs. V. Rakkammal" AIR 1992 Mad 136 (DB): (1991) 2 LW 487 and by Gujarat High Court in case titled as "Smt. Multivahuji w/o. Goswami Goverd- haneshji Girdhariji Vs. V. Smt. Kalindivahuji and Ors." AIR 1994 Guj 42.
25. It is further submitted that, the examination of DW-1 on the al- leged adoption is nothing but an attempt to lead false evidence in these judi- cial proceedings and same is liable for rejection considering the facts that same is hear say; DW-1 was only 10 year child at the time of alleged adop- tion; the deposition of said DW-1 is ex-facie contrary to the deposition of De- fendant No.1 and Sh. Narain Singh made way back in 1980s in probate pro- ceedings when they deposed that neither there was any adoption ceremony nor any adoption deed; the witness though claimed to have remembered the alleged incident of adoption but unable to answer any other question; states that the brothers and sisters of Plaintiff No.1 were present who have already denied any ceremony of adoption having taken place, said deposition was made way back in 1980s itself; witness is unable to give specific date of al- leged adoption; though it was stated to be time of winter but the stated attire of the family members was told as if of summer. It is further submitted that, it is apparent that the said witness is tutored one and has given false affidavit in the case and is liable for prosecution for knowingly giving false evidence Digitally in the case.
signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.09.27 16:10:33 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 16 of 62
26. It is further averred that, the inheritance of estate of his Uncle Sh. Munni was based on the WILL of said Sh. Munni (Ex. PW-1/DA). It is further submitted that, w.r.t. other part of the Issue No. 3 i.e. bar of Section 50 DLR Act making Plaintiff No.2 disentitle to inherit being a female mem- ber) is concerned, no evidence has been led in the case on said aspect. It is further submitted that the said plea in untenable/ unsustainable in view of area of Nazafgarh having been urbanized way back in 1963 rendered the pro- visions of DLR Act inapplicable. Even otherwise, the said provisions of Sec. 50 of DLR Act have been held to be superseded/repealed by the Hindu Suc- cession Act as amended vide Amendment of 2005 as held by the Division Bench of Hon'ble High Court of Delhi in case titled as "Nirmala Vs. Govt. of NCT of Delhi" 170 (2010) DLT 577 (DB). It is further submitted that, the other evidence led by the Defendants of DW-2 (summoned witness from of- fice of BDO) is inconsequential and liable to be ignored in view of same hav- ing been beyond the pleadings/ pleaded case, aiming at to set up a new case and new plea having no whisper in the WS about the same.
27. It is further submitted that, as per settled principles of Law, no evidence can be led beyond pleadings and if led, same is not liable to be con- sidered by the Hon'ble Courts. Ld. Counsel for plaintiff has relied upon a judgment passed by Hon'ble Supreme Court in case titled as "Nandkishore Lalbhai Mehta Vs. New Era Fabrics Pvt. Ltd. and Ors." (2015) 9 SCC 755:
"Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao and Ors."
(2010) 1 SCC 466, in support of his contentions.
28. It is further submitted that, the alleged Bhami Faisla was neither pleaded nor any reference in respect to same was made in the WS. It is fur- ther submitted that, the first time same was attempted to be put forth in the Digitally signed by SHILPI SHILPI JAIN M cross examination of the PW-1 who denied the execution of any such Bhami M Date:
JAIN 2025.09.27 16:10:48 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 17 of 62 +0530 Faisla. It is further submitted that, even otherwise DW-2 was unable to prove the same, the alleged register were submitted in the office of BDO after more than 30 years and authenticity of same was never ascertained. It is further submitted that, it has also come in evidence that the Prodhan at relevant time, was relative of Defendants and that as per provisions of DLR Act, LR 38 is not meant to record any settlement amongst the residents of village.
29. It is further submitted that, so far Issue Nos. 1, 2 & 7 are con- cerned, onus to prove the same was on the Plaintiffs which according to the Plaintiffs have been duly proved. In this regard it is submitted that the area where the suit property is situated has already been urbanized way back in 1963 and that admittedly the Plaintiffs as also Defendants are the biological children of Late Sh. Munshi Ram who was survived by six legal heirs and it is further submitted that the plea of adoption being without any merit/sub- stance as detailed herein above and provisions of Sec. 50 inapplicable to the facts of the present case, the Plaintiffs are entitled for declaration that each of the Plaintiffs is entitled for 1/6th share in the suit property. It is further sub- mitted that, admittedly no partition of suit property has taken place after death of late Sh. Munshi, same was otherwise not possible in view of pro- ceedings in respect to title of said Sh. Munshi Ram were pending and were fi- nally decided only on 24.11.2008 where after the Defendants attempted to usurp the share of the Plaintiffs, the suit property has remained undivided/ joint amongst the LRs of Late Sh. Munshi Ram, therefore, same is liable for partition in accordance with law, as prayed in the plaint.
30. It is further submitted that, vide order dated 22.05.2009 Status Quo in respect to suit property was directed/ issued which was confirmed Digitally vide order dated 28.10.2014, thus, in view of above the Plaintiffs are also en- signed by SHILPI M SHILPI JAIN M JAIN Date:
titled for the relief of injunction in respect to their share/ entitlement. It is fur- 2025.09.27 16:10:55 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 18 of 62 ther submitted that, the Plaintiffs are entitled for the reliefs as prayed in suit which may kindly be allowed/ granted by the Hon'ble Court with costs in terms thereof.
31. Ld. Counsel for plaintiff relied upon following Judgments in support of his contentions:
1. Alagammai and 4 others Vs. V. Rakkammal1
2. Smt. Multivahuji W/o Goswami Goverdhanesji Girdhariji Vs. V. Smt Kalindivahuji and Ors. 2
3. Nirmala Vs. Govt. of NCT of Delhi 3
4. NandKishore Lalbhai Mehta VS. New Era Fabrics Pvt. Ltd. And Ors4
5. Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao and Ors5
32. Per contra, Ld. Counsel for defendants vehemently denied the claim of the plaintiffs by submitting that the Plaintiff No.1 has no right, title, interest, share in the suit property owned & possessed by Sh. Munshi Ram as his rights therein stood extinguished after his adoption by his Tau Sh. Munni. It is further submitted that, adoption being prior to 1956, no written or formal document or particular form of ceremony required for same and same was governed by customary laws in effect before 1956 (for Ahir Community) which required only the "giving-taking of child" in adoption. It is further sub- mitted that, Plaintiff no.1/Manphool admitted himself to be the adopted son of Sh. Munni in judicial proceedings being Application dt. 20.12.1984 filed in W.P.(C) 362/1983 i.e. Ex.PW-1/6 which also bears his thumb impression. It is further submitted that, plaintiff No. 1 admits that no complaint ever filed before any forum in respect of his thumb impression on above application Digitally signed by 1 AIR Mad 136 (DB): (1991) 2 LW 487:
SHILPI SHILPI M M JAIN 2 AIR 1994 Guj 42:
Date:
JAIN 2025.09.27 3 170 (2010) DLT 577 (DB) 16:11:00 +0530 4 (2015) 9 SCC 755:
5 (2010) 1 SCC 466:
CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 19 of 62 filed before Hon'ble High Court and further submitted that the above Applic- ation i.e. Ex.PW-1/6 was allowed vide Order dt. 25.03.1985 and same at- tained finality.
33. It is further submitted that, on the Memo of Parties of LPA No. 436/2008 Plaintiff No.1 described as adopted son of Munni (wrongly typed as Munshi) and that the said LPA was decided vide judgment dt. 24.11.2008 wherein Plaintiff No.1 /Manphool was duly represented but never raised any objection on him being described as 'adopted son of Munni'. It is further sub- mitted that, during his cross-examination dt. 16.08.2017, plaintiff No.1 ad- mits that after the death of Sh. Munshi Ram, entire litigation pertaining to suit land with Mr Jain, had been continued/contested by defendants alone and he further admits that he was not substituted as legal representative/legal heir of deceased Munshi either in litigation before the Hon'ble High Court or the revenue authorities. It is further submitted that, Plaintiff No.1 admits during his above said cross-examination that Sh. Munni was his Tauji, he was issue- less and all properties of Munni inherited by him and further admits that he used to live with Sh. Munni and also performed his last rites.
34. It is further submitted that, thee 'giving-taking ceremony" qua adoption of Plaintiff Manphool in the year 1950 duly proved by the defend- ants by examining the eye-witness of said ceremony Sh. Dalip Singh (DW-1). It is further submitted that, the alleged Will dt. 04.07.1966 left by Munni neither pleaded nor proved in accordance with law and plaintiff no. 1 during his cross-examination dt. 11.10.2017 also admitted that the alleged will not produced or relied upon or filed in records in any earlier litigations and he further admitted that after the judgment dt. 29.07.2004 mutation of the Digitally signed by SHILPI SHILPI M suit property recorded only in name of & sons of deceased Mushi Ram /de- JAIN M JAIN Date:
2025.09.27 fendants, as shown in revenue records which is Ex.PW-1/DB & DC). It is 16:11:06 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 20 of 62 further submitted that, during said cross-examination Plaintiff No.1 also ad- mits that he has not filed any objections against above mutation entries recor- ded only in name of 4 sons of Munshi Ram/defendants and further admits that he never came in possession of the suit property.
35. It is further submitted that, the factum of above adoption of Plaintiff No.1 by Sh. Munni also duly recorded and corroborated in the Fam- ily Settlement dt. 24.06.1961 (Mark C in Cross of PW-1/Ex. DW-2/1) and Bahami Faisla dt. 26.07.1973 (Mark D in cross of PW-1/Ex.DW-2/2) and that the said documents duly proved by calling DW-2 (official witness) who produced the certified copies of said documents. It is further submitted that, the Family Settlement dt. 24.06.1961 (EX.DW-2/1) was held between Munni, Munshi and Narain Singh qua their immovable properties, thereby agreeing that Narain Singh and Manphool have no right in the property situated out- side village purchased by Munshi Ram i.e. the suit property and that this set- tlement was recorded in the proceedings conducted by Harnarayan, Gram Pradhan and Secretary, Block Congress Committee namely Sh. Master Lal Singh and same bears thumb impressions of Plaintiff No.1/Manphool, Ram- pat, Munshi, Narain Singh and Munni. It is further submitted that, the Ba- hami Faisla dt. 26.07.1973 (Ex.DW-2/2) was held between Narain Singh S/o Mam Chand, Manphool Singh S/o Munni Ram, thereby agreeing that in the ancestral property Munni Ram, Mushi and Narain Singh had 1/3rd equal share and over the property of Munni Ram Manphool alone has the rights and Munshi Ram and Narain Singh have no rights therein and over the property of Munshi Ram, Manphool has no rights and only the defendants have rights therein. This settlement was recorded in presence of Gram Pradhan Digitally signed by Raghunath and other members and same bears the thumb impression of Man-
SHILPI SHILPI
JAIN
M
M Date: phool/Plaintiff No.1.
JAIN 2025.09.27
16:11:22
+0530
CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 21 of 62
36. It is further submitted that, the above family settlement and Ba- hami Faisala have been duly recorded in the records maintained by the rev- enue officials in accordance with provisions of Section 64 to 71 of the Delhi Panchayat Raj Act, 1954. It is further submitted that, in Ch-VI of the Delhi Panchyat Raj Act, 1954, the specific powers have been assigned to the Pan- chayat Adalat and Circle Panchayat to resolve the disputes arising between any parties under S. 50(2) and to record the settlement/compromise under S. 71 of the Delhi Panchayat Raj Act, 1954. It is further submitted that, above said documents Ex. DW-2/1 & 2/2 are the certified copies of the settlement recorded by the Revenue Officials under the provisions of S. 71 of above Act. It is further submitted that, the above documents maintained by the offi- cial authorities wherein the Plaintiff No.1/Manphool has admitted himself to be the son of Sh. Munni and having no rights in immovable properties of Sh. Munshi Ram, duly proves and corroborates the factum of adoption of Plaintiff No.1. It is further submitted that, the above documents i.e. Ex. DW2/1 & Ex. DW 2/2 being certified copies of the official revenue/public re- cords, is a relevant fact and carries the presumption of genuineness under Section 35 of the Evidence Act.
37. It is further submitted that, the argument raised by Ld. Counsel for plaintiff that the evidence produced by defendant in above regard is bey- ond pleadings is devoid of merits in as much as provisions of Order VI Rule 2 CPC provides that the pleadings shall contain only a statement in a concise form of the material facts on which the party relies for his defence but not the evidence by which they are to be proved. It is further submitted that, in the Written Statement, the defendants have clearly pleaded the factum of adop- tion of plaintiff no. 1 and in order to prove the said factum the defendants SHILPI have produced and proved on record the above documents i.e. Ex. DW2/1 & M JAIN Digitally signed by SHILPI M JAIN Ex. DW 2/2. It is further submitted that, other plea raised by plaintiff that Date: 2025.09.27 16:11:31 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 22 of 62 none of the defendant have entered in witness box is also meritless. It is fur- ther submitted that, the core issue with regard to rights of plaintiff no.1 is per- taining to his adoption, which factum has been duly proved by the defendants by producing the eye witness to the adoption ceremony. It is further submit- ted that, by the time and stage of the defendants evidence, all the original de- fendants to the suit had expired and their legal heirs were not the eye wit- nesses to the said adoption ceremony.
38. It is further submitted that, the other plea raised by plaintiff with regard to probate judgment dt. 12.10.1993 operating as a res-judicata is also meritless. It is further submitted that, the sole issue in the said probate was "whether deceased Munshi Ram had executed the Will dt. 08.06.1983 while he was in sound disposing mind". It is further submitted that, in the probate proceedings, the right, title interest in immovable property cannot be decided and it is only the right to administer the property is settled in probate pro- ceedings. It is further submitted that, the probate court has jurisdiction only to determine about the genuineness of the will and whether the petitioner apply- ing for probate is entitled thereto. It is further submitted that, in the judgment dt. 12.10.1993, neither the adoption of Sh. Manphool was directly and sub- stantially in issue nor there was any occasion for the Court to decide the same on merits, thus, no question of application of S.11 CPC applies.
39. Ld. Counsel for defendants further submitted that the reliance placed by plaintiff upon the Notification dt. 23.05.1963 u/s 507A of DMC Act by filing the same at time of final arguments has no merit as both in plaint and evidence, plaintiff admit that suit land is agricultural land governed by DLR Act; plaintiff neither plead nor proved said notification as per law; Digitally signed by SHILPI M admittedly deceased Munshi Ram for declaring himself as bhumidar of suit SHILPI JAIN M JAIN Date:
2025.09.27 land filed a petition dt. 22.10.1975 U/s 11,13 & 85 of DLR Act against Mr. 16:11:39 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 23 of 62 Jyoti Prasad and same was decided by RA in his favour vide Order dt. 03.11.1980 and thereafter upto the year 2010, the proceedings under the DLR Act were on-going before different courts of law, admitting therein that suit property is governed under DLR Act. It is further submitted that, even assum-
ing for sake of argument without any admission, that by virtue of notification dt. 21.03.1963 the suit land ceased to be governed by provisions of DLR Act and plaintiff No. 2 has her right qua the suit land. If said argument of the plaintiff is considered then the petition di. 22.10.1975 filed by Munshi Ram u/S. 11,13, & 85 of DLR Act and order dt. 03.11.1980 passed by RA are it- self without jurisdiction and no rights in suit land comes to Sh. Munshi Ram and consequently plaintiff has no right to seek partition of the suit land.
40. It is further submitted that, plaintiff No.2 does not have any right, title, interest or share in the suit property as it is Plaintiffs own case that the suit property governed by the provisions of Delhi Land Reforms Act and that in the other litigations between Sh. Munshi Ram and Mr Jain, plaintiff No. 2 was not impleaded as LR after the death of Sh. Munshi as being a fe- male member she did not succeed to estate of her father under DLR Act. It is further submitted that, plaintiff's alleged claim for a share in suit property based upon the amendment to HSA w.e.f. 05.09.2005. It is further submitted that, admittedly, Sh. Munshi Ram through whom the plaintiff's claim right/ share in the suit property, derived his rights therein by being declared bhu- midar under the provisions of S. 85 of the DLR Act, which proceedings were instituted on 22.10.1975. It is further submitted that, application dt. 20.12.1984 filed in W.P.(C) 362/1983 (Ex.PW-1/6), for impleadment of legal representatives of deceased Munshi Ram in relation to the suit land, also cat- egorically stated that daughter of Munshi Ram does not succeed to the estate Digitally signed by under the DLR Act and that this application i.e. Ex.PW-1/6 was allowed vide SHILPI M SHILPI JAIN M JAIN Date: Order dt. 25.03.1985 and same attained finality and that no appeal, review, 2025.09.27 16:11:44 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 24 of 62 revision, challenge to the above has been filed by the plaintiff no. 2. It is fur- ther submitted that, defendants are in settled possession of suit property as per the above family settlement and already succeeded to estate of deceased Sh. Munshi Ram under Sec. 50 of the DLR Act to exclusion of plaintiff no. 2.
41. It is further submitted that, PW2 (son of plaintiff No.2) during his cross-examination dt. 19.02.2018 admits that his mother was never in possession of suit property and that the suit land governed by the DLR Act and that on date of death of Munshi, succession was governed by DLR Act and amendment in the HSA came in the year 2005. It is further submitted that, during his above said cross-examination plaintiff no.2 hopelessly failed to plead and prove any alleged right, share, claim in respect of the suit prop- erty. It is further submitted that, testimony of PW-2 absolutely unreliable and not trustworthy. It is further submitted that, plaintiff No.1/PW-1 admits that the suit land is used for cultivation and PW-2 admits that he cannot produce any document showing change of land use. It is further submitted that, Plaintiff No.2 never challenged the mutation of the suit property in favour of defendants alone to her exclusion.
42. It is further submitted that, alleged claims of the plaintiffs are barred by estoppel in view of the stand and admissions made by them in the judicial proceedings and official revenue records and also barred by limita- tion. It is further averred that, Plaintiff's to their own knowledge excluded from the rights and succession to sis property after death of Sh. Munshi Ram as only the defendants were impleaded as Legal Representatives of Sh. Mun- shi Ram in relation to suit property in W.P(C) No 362/1983 vide Order dt 25.03.1985 and that there is no appeal, review, revision, challenge to same by Digitally signed by SHILPI M either of the plaintiffs. It is further submitted that, the mutation in respect of SHILPI JAIN M JAIN Date:
2025.09.27 16:12:07 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 25 of 62 the suit land recorded only in favour of the defendants herein to exclusion of plaintiffs and no challenge raised thereto by the plaintiffs.
43. It is further submitted that, the affidavit of the plaintiffs filed in support of the plaint have been alleged to be read over and explained by one Sh. Rakesh Kumar and he is alleged to have identified the executant of the said affidavit. It is further submitted that, admittedly, Sh. Rakesh Kumar is a "Clerk (as stated in para no. 4 of the replication) and he is not the authorised person to identify the executant of the said affidavit, hence, the plaint is not instituted and presented properly.
44. It is further submitted that, after the demise of plaintiff no.1/Sh.
Manphool Singh, only his Grandson Sh. Krishan Kumar S/o Surat Singh has been impleaded in his place despite the fact that he has left behind 3 sons, LRs of two pre-deceased sons and 3 daughters. It is further submitted that, Sh. Krishan Kumar is not the legal representative of deceased plaintiff no.1 in view of the provisions of S. 2(11) of CPC. It is further submitted that, after the death of Manphool Singh, Sh. Krishan Kumar is not the person who can represent in law the estate of Sh. Manphool or the estate of Sh. Manphool Singh has not devolved upon him. It is further submitted that, after the demise of Sh. Manphool, his estate devolved upon and can be represented in law only through his class I legal heirs and that the father of Sh. Krishan Kumar is still alive and he is not the legal heir of Sh. Manphool Singh.
45. Ld. Counsel for defendant relied upon following Judgments in support of his contentions:
1. Tara Chand Vs. Ram Avtar & Ors.6
2. Madhusudan Das Vs Smt. Narayanibai (Deceased) by Lrs.7 Digitally signed by SHILPI SHILPI JAIN M 6 AIR 1975 Punjab 20, M Date: 7 AIR 1983 SC 114 JAIN 2025.09.27 16:12:12 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 26 of 62
3. Inder Singh Vs Gurdial Singh8
4. Salig Ram Vs Munshi Ram9
5. Sohan Singh Jit Singh & Ors. Vs Gurtej Singh & Anr.10
6. Devakka Fakirraddi Konnaraddiyavar & Anr. Vs. Giraddi Ramaraddi Konnaraddiyavar & Anr.11
7. Vasant Atmaram & Anr. Vs Dattoba Rajaram,12
8. Bhajan Lal Vs Madan Lal Bajaj13
9. Smt. Uma Devi & Ors, Vs Sri Anand Kumar & Ors. 14
10. Paramjit Singh Vs. Charanjit Singh & Others, 15
11. Mahender Kumar Khurana Vs Rajinder Kumar Kurana & Ors.16
12. Har Naraini Devi & Anr. Vs. Union of India & Ors. 17
13. Indu Rani @ Indu Rathi Vs. Pushpa & Ors. 18
14. Naresh Kumar Vs. Tadbir Singh & Ors.19
15. Subhadra Vs. Sunder Singh & Ors.20
16. Sumitra Vs Ganga Ram & Ors21
17. Ram Mehar Vs. Dakhan,22
18. Brij Nain Aggarwal Vs. Anup Kumar Goyal & Ors 23
19. Sh. Mukesh & Ors. Vs. Bharat Singh & Ors.24
20. Kikiben & Ors. Vs Balvantlal Shivlal25
21. Ravi Khanna Vs Pankaj Khanna & Ors26
22. Vinay Rai Vs Anil Rai27
23. Sharma Enterprises Vs Hotel Leelaventure Ltd.28 ISSUE-WISE ANALYSIS AND FINDING:
Issue No. 3: Whether the plaintiffs have no cause of action to file the suit 8 AIR 1967 SC 119, 9 AIR 1961 SC 1374, 10 AIR 1972 Punjab 152 11 AIR 1967 Bombay 99 12 AIR 1956 13 AIR 1983 Delhi 555 14 SLP No. 2137/2025 15 2008 (151) DLT 527 16 (2013) 138 DRJ 715, 17 AIR 2022 SC 4632 18 CS (OS) 236/2020 19 313 (2024) DLT 1, 20 2016 (229) DLT 188, 21 CS (OS) 27/202 22 1973 (9) DLT 44 23 AIR 2007 Delhi 254.
24 2008 (149) DLT 114 25 (2000) 1 Scale 357 26 (2008) 152 DLT 484 Digitally signed by 27 2010 VII AD ( Delhi) 769 SHILPI SHILPI JAIN M 28 159 (2009) DLT 60, M Date:
JAIN 2025.09.27 16:12:19 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 27 of 62 +0530 for reasons stated by defendants in para No. 2 of preliminary objections of their written statement? OPD
46. Cause of action is a bundle of facts that, when taken with the applicable law, entitles the plaintiff to relief29. At the stage of final adjudication, unlike the preliminary stage under Order VII Rule 11 CPC, the plaintiff must substantiate these facts with credible evidence to establish a right to relief.
47. In present matter plaintiff has pleaded following cause of action:-
"That cause of action for filing of present suit arose in termi above stated. It arose with defendants attempting to encroach upor plaintiffs' right in the suit property held by respective plaintiff and the defendants, individually and jointly ever since death of their father, by their acts and actions abovestated/committed in respect to the suit property for the first time during months of February 2009 It has continued to arise with defendants refusing to refrain from indulging in acts affecting plaintiffs' rights. Cause of action is in continuance with plaintiffs' demand and defendants' avoidance Cause of action continues to accrue to plaintiffs."
48. Ld. counsel for plaintiff submitted that, cause of action arose with defendants attempting to encroach upon plaintiffs' right in the suit property held by respective plaintiff and the defendants, individually and jointly ever since death of their father, by their acts and actions abovestated/committed in respect to the suit property for the first time during months of February 2009. It is further submitted that, cause of action, has continued to arise with defendants refusing to refrain from indulging in acts affecting plaintiffs' rights. Cause of action is in continuance with plaintiffs' SHILPI M JAIN Digitally signed 29 Dahiben v. Arvindbhai Kalyanji Bhanusali (2020) 7 SCC 366 by SHILPI M JAIN Date: 2025.09.27 16:12:30 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 28 of 62 demand and defendants' avoidance. Cause of action continues to accrue to plaintiffs.
49. While, it is a contention of the defendant that there is no cause of action in favour of plaintiff as deceased plaintiff No. 1 was born in the family of Munshi but adopted by Munni, hence, inherited his/her properties. It is further contended that plaintiff No.2 being a female does not inherited in terms of Section 50 of Delhi Land Reform Act. It is further submitted that these facts are borne from the Will of the Munshi and otherwise also agricultural land in question being self own right has been given to defendant.
50. However, plaintiff disputed the factum of possession as well as of agricultural land. It is submitted that neither plaintiff No. 1 was ever adopted by anyone nor suit land is an agricultural land rather urbanized in the year 1963 itself.
51. This court carefully gone to the submissions made by the parties as well as the material placed on record. Since, cause of action is a bundle of right upon which right to sue accrues, this court is of the opinion that objections raised by defendant were matter of trial and it could not be stated that cause of action had not been arisen at all. In view thereof, this issue is decided in favour of plaintiffs and against the defendants.
Issue No. 4: Whether the suit is barred by limitation as claimed by defendants? OPD Digitally signed by SHILPI SHILPI M 52. During the course of arguments, Ld. counsel for the defendants JAIN M JAIN Date:
2025.09.27 vehemently objected the maintainability of the present suit being barred by 16:12:45 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 29 of 62 limitation. It is submitted that present suit has been filed after 24 years of consented substitution on 22.05.1985 of defendants in place of Munshi, hence, abandoned their claim. Ld. counsel for the defendant further relied upon the Judgment passed by Hon'ble Supreme Court of India in Laxman Singh Vs. Hazara Singh (2008) 5 SCC 444 in support of his contention.
53. However, Ld. counsel for the plaintiff disputed the factum of 'consented substitution'. It is submitted that Late Sh. Munshi Ram was the Bhoomidhar of the suit property. However, the said Bhoomidhari right were challenged by one Sh. Rai Sahab Jyoti Prasad Jain by way of proceedings U/s 84 and in contra Late Sh. Munshi Ram initiated proceedings U/s 11, 13 and 85 of DLR Act leading to filing of Writ Petition i.e. WP (C) No. 362/1983. It is further averred that said writ petition was allowed vide Judgment date 29.07.2004 wherein it was held that cumulatively possession of Late Sh.
Munshi Ram was adverse to other claimant. It is further submitted that order dated 03.11.1980 passed by Revenue Assistant was restored and subsequent order dated 17.05.1982 and 13.08.1982 passed by Additional Collector and Financial Commissioner qua respectively were ordered to be quashed. Review application i.e. RA 37/2008 followed by LPA No. 436 of 2008 was also dismissed.
54. It is further submitted that late Sh. Munshi Ram left for heavenly abode on 27.11.1984 and thereafter one probate petition was filed by defendants for purported Will dated 08.06.1983 vide PC No. 872/1993 but same was dismissed vide Judgment dated 12.10.1993. It is further submitted that said probate petition was based upon concocted story of adoption and duly challenged by the plaintiffs herein. Hence, alleged 'consented Digitally SHILPI signed by SHILPI M JAIN substitution' on 22.05.1985 has no relevancy in the eye of law.
M Date:
JAIN 2025.09.27
16:13:03
+0530
CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 30 of 62
55. No doubt any suit instituted after the prescribed period of limitation shall be dismissed even if limitation is not taken as a defence U/s 3 of the Limitation Act. But in considered opinion of this court present suit for partition, declaration and consequential relief of injunction can not be said as barred by limitation. Though there is no specific limitation given for suit for partition but Article 11030 of the Part-IX of Schedule of the Limitation Act, 1963 provided period of limitation as 12 years for the suit by any person excluded from the joint family property to enforce a right to share therein and said 12 years is begin to run when the exclusion becomes known to the plaintiff.
56. Admittedly, late Munshi Ram was absolute owner of suit property till his death and thereafter defendants themselves filed probate petition for purported Will dt. 8th June 1983 and same was duly contested by plaintiff herein and finally dismissed vide judgment dated 12 th October 1993. Hence, plaintiffs cannot be termed as excluded from the joint property for the purpose of Article 110 of Limitation Act. So far as, 'consented substitution' dated 22.05 1985 is concerned same has been dealt in detail in later part of the judgment.
57. In view thereof present suit can not be stated as barred by limitation. Hence, this issue is decided in favour of plaintiff and against the defendants.
Issue No. 5: Whether the plaint in the name of plaintiff No. 2 is not properly presented for reasons stated by defendants in Para Digitally signed by No. 4 of preliminary objections? OPD SHILPI SHILPI JAIN M M Date:
JAIN 2025.09.27 30 110. By a person excluded from a joint family property to enforce a right to share therein-Twelve years-
16:13:10 +0530 When the exclusion becomes known to the plaintiff.
CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 31 of 62
58. For the purpose of clarification Para No. 4 of preliminary objection is produced herein below:-
'That the suit is defective and incompetent and be returned for compliance of mandatory legal affidavit as per Order VI rule 15 CPC, the affidavits filed are no affidavits in the eye of law. To mention few defects, it is submitted that this man Shri Rakesh Kumar, who identified the execution of affidavits, has no locus standii. Paragraph 3 is false and incomplete, documents have been filed inasmuch as the very basic Memo of Parties of the decision on writ petition No.362/83 showing glaringly writ having been decided only in favour of defendants not fled. This Memo of parties dated 27.5.85 has been intentionally kept back from the judgment and the verification is also wrong as per Order 19 CPC and as per the two authorities cited in the rejoinder to Order 7 rule 11 CPC Application.'
59. Ld. counsel for defendants further submitted that, since plaintiff no. 1 is adopted son of Munni, he neither has right, title or interest qua suit property nor any connection with the family members of Late Munshi. It is further submitted that, even plaintiff No.2 does not have any right, title, interest or share in the suit property as it is Plaintiffs own case that the suit property governed by the provisions of Delhi Land Reforms Act and that in the other litigations between Sh. Munshi Ram and Mr Jain, plaintiff No. 2 was not impleaded as LR after the death of Sh. Munshi as being a female member she did not succeed to estate of her father under DLR Act. It is further submitted that, plaintiff's alleged claim for a share in suit property based upon the amendment to HSA w.e.f. 05.09.2005. It is further submitted that, admittedly, Sh. Munshi Ram through whom the plaintiff's claim right/share in the suit property, derived his rights therein by being declared bhumidar under the provisions of S. 85 of the DLR Act, which proceedings were instituted on 22.10.1975.
Digitally signed by SHILPI SHILPI JAIN M 60. It is further submitted that, application dt. 20.12.1984 filed in M Date:
JAIN 2025.09.27 16:13:16 W.P.(C) 362/1983 (Ex.PW-1/6), for impleadment of legal representatives of +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 32 of 62 deceased Munshi Ram in relation to the suit land, also categorically stated that daughter of Munshi Ram does not succeed to the estate under the DLR Act and that this application i.e. Ex.PW-1/6 was allowed vide Order dt. 25.03.1985 and same attained finality and that no appeal, review, revision, challenge to the above has been filed by the plaintiff no. 2. It is further submitted that, defendants are in settled possession of suit property as per the above family settlement and already succeeded to estate of deceased Sh.
Munshi Ram under Sec. 50 of the DLR Act to exclusion of plaintiff no. 2.
61. It is further submitted that, PW2 (son of plaintiff No.2) during his cross-examination dt. 19.02.2018 admitted that his mother was never in possession of suit property and that the suit land governed by the DLR Act and that on date of death of Munshi, succession was governed by DLR Act and amendment in the HSA came in the year 2005. It is further submitted that, during his above said cross-examination plaintiff no.2 hopelessly failed to plead and prove any alleged right, share, claim in respect of the suit property. It is further submitted that, testimony of PW-2 absolutely unreliable and not trustworthy. It is further submitted that, plaintiff No.1/PW-1 admits that the suit land is used for cultivation and PW-2 admits that he cannot produce any document showing change of land use. It is further submitted that, Plaintiff No.2 never challenged the mutation of the suit property in favour of defendants alone to her exclusion. Now, this Court examine each objection as below:
OVER-RIDING EFFECT OF AMENDMENT OF HSA 2005 OVER THE PROVISIONS OF SECTION 50 OF THE DLR ACT Digitally 62. The bhumidari rights are special rights created on the signed by SHILPI SHILPI M M JAIN Date:
abolition of ownership of agricultural land and are controlled and regulated JAIN 2025.09.27 16:13:23 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 33 of 62 by the provisions of the Delhi Land Reforms Act, 1954. The Hon'ble Supreme Court in Hati v. Sunder Singh31 analysed various provisions of DLR Act and concluded that "there is no warrant to travel outside the Act and the Rules for further restrictions in the right or manner of transfer of the bhumidhari rights". The provisions of customary law do not apply to transfer of bhumidhari rights. Section 50 of the Delhi Land Reforms Act, 1954 sets out the general order of succession from males. It reads as under:
'50. GENERAL ORDER OF SUCCESSION FROM MALES. - Subject to the provisions of section 48 and 52, when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of the succession given below :
(a) Male lineal descendants in the male line of the descent :
Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive;
Provided further that the son or sons of a predeceased son howsoever low shall inherit the share which would have devolved upon the deceased if he had been then alive;
(b) widow;
(c) father;
(d) mother, being a -widow;
(e) step mother, king a widow;
(f) father's father;
(g) father's mother, being a widow;
(h) widow of male lineal descendant in the male line of descent:
(i) unmarried daughter;
(j) brother, being the son of the same father as the deceased;
(k) brother's son, the brother having been a son of the same
father as the deceased;
(l) father's father's son;
(m) brother's son's son;
Digitally
signed by
SHILPI SHILPI M
(n) father's father's son's son;
JAIN
M
2025.09.27 31 AIR 1971 SC 2320
Date:
JAIN
16:13:34
+0530
CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 34 of 62
(o) daughter's son
60.1 After the Hindu Succession (Amendment) Act, 200532, the
difference between the female and male inheritor has been abolished.
Now, even female inheritor [daughter] can also claim partition of the ancestral property. In Nirmala V. Govt. of NCT of Delhi 33, Hon'ble High Court of Delhi hold as follows:
'For the aforesaid reasons, we hold that the provisions of the HSA would, after the amendment of 2005, have over-riding effect over the provisions of Section 50 of the DLR Act and the latter provisions would have to yield to the provisions of the HSA, in case of any inconsistency. The rule of succession provided in the HSA would apply as opposed to the rule prescribed under the DLR Act. The petitioners are, therefore, entitled to succeed to the disputed agricultural land in terms of the HSA.'
63. In present matter, The plaintiffs assert that the suit property, owned by their father Munshi Ram (deceased 27.11.1984), is ancestral, and as his biological children (five sons and one daughter), they are entitled to a 1/6th share each under the Hindu Succession Act (HSA). They argue that the property is urbanized (since 1963), rendering the DLR Act inapplicable, and that the 2005 HSA amendment grants Plaintiff No. 2 equal succession rights.
64. Ld. counsel for defendants argue that Plaintiff No. 2, as a female, is barred from inheriting under Section 50 of the DLR Act, which prioritizes male heirs for Bhumidhari rights. They further contend that the plaint is defective due to improper affidavit verification by a clerk (Sh.
Digitally signed by SHILPI M SHILPI JAIN 32 Section 6 M JAIN Date: 33 1 7 0 ( 2 0 1 0 ) D LT 5 7 7 2025.09.27 16:13:46 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 35 of 62 Rakesh Kumar) and that Plaintiff No. 1's legal representative (Krishan Kumar) is improperly impleaded under Section 2(11) CPC.
65. In nutshell, Section 50 of the DLR Act governs succession to Bhumidhari rights, prioritizing male lineal descendants and excluding daughters unless no male heirs exist. However, the Hindu Succession Act (HSA), as amended in 2005, under Section 6, grants daughters equal coparcenary rights in ancestral property, overriding inconsistent provisions34. In Nirmala v. Govt. of NCT of Delhi35, the Delhi High Court held that the HSA prevails over Section 50 of the DLR Act for urbanized land.
Urbanization of Najafgarh:
66. DW2, a Senior Assistant from the BDO Office, admitted during cross-examination that Najafgarh was urbanized in 1963 pursuant to a notification under Section 507(a) of the Delhi Municipal Corporation Act, 1957 (DMC Act). Record further reveals that specific query was made to DW-2 about submission of register which is reproduced herein below:-
XXXXX of DW-2 Sh. Ravinder Kumar, Sr. Assistant, BDO Office, South West, Najafgarh, New Delhi.
" "Q1. Are you aware that the village Najafgarh has been urbanized?
Ans. Yes, it has been urbanized in 1963. Q2. When did you join the office of BDO? Ans. In October, 2018.
Q3. Can you tell on which date the present register brought by you today was submitted in the office of BDO? Ans. After checking the record witness stated that, it was submitted in the office of BDO on 24.09.1991. Digitally signed by SHILPI SHILPI 34 Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 M JAIN M 35 170 (2010) DLT 577 Date:
JAIN 2025.09.27 16:13:51 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 36 of 62 The certified copy of said notings are produced and now exhibited as Ex.DW2/P1 Q4. Did anyone in the office of BDO verified the correctness of the record submitted by the then Pradhan of the village Khaira on 24.09.1991?
Ans. I cannot say as I joined the office of BDO in October, 2018 Q5. Please check your record and tell is there any verification note by any of the officials in BDO at the time of submission of above record?
Ans. Except Ex.DW2/P1 there is no other noting of verification.
Q6. Can you tell the purpose of LR Form 38 for which the same are maintained by the Gram Sabha? Ans. I only knew that the same is maintained by the Pradhan."
67. Thus, the defendants' reliance on Section 50 of the DLR Act to exclude Plaintiff No. 2 is misplaced. This urbanization renders the DLR Act inapplicable, as confirmed by the Supreme Court in Mohinder Singh v. Narain Singh ((2023) SCC OnLine SC 1327), which held that upon urbanization, DLR Act proceedings become non est, and the HSA governs succession.
Plaintiff No. 2's Rights/Share qua such property
68. As the daughter of Munshi Ram, Plaintiff No. 2 is entitled to a 1/6th share in the suit property under the HSA, given its undivided status and urbanization. The defendants' reliance on Section 50 is misplaced, as the 2005 HSA amendment applies to successions post-amendment for undivided property36. The defendants' argument that the amendment is not retrospective is irrelevant, as the suit property remains joint, and succession opened on Munshi Ram's death in 1984, with partition sought post-2005. It is settled that, effect of 2005 amendement shall be retroactive:
Digitally signed by 36 Vineeta Sharma (Supra) SHILPI M SHILPI JAIN M JAIN Date:
2025.09.27 16:13:56 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 37 of 62 Affidavit Verification:
69. Order VI Rule 15 CPC requires plaint verification by the plaintiff or an authorized person. The defendants' objection that Sh. Rakesh Kumar, a clerk, was unauthorized lacks evidence. The plaintiffs' affidavits (Ex.PW1/A, Ex.PW2/A) were duly filed, and no procedural irregularity was substantiated. The replication clarifies Sh. Rakesh Kumar's role, and the defendants failed to prove non-compliance.
Impleadment of Krishan Kumar:
70. The defendants challenge the impleadment of Krishan Kumar as Plaintiff No. 1's legal representative, citing Section 2(11) CPC, which defines a legal representative as a person who represents the estate of a deceased person. Record reveals Plaintiff No. 1 (Manphool Singh) died during the proceedings, and Krishan Kumar, his grandson, was impleaded. While the defendants argue other heirs (sons and daughters) exist, this objection is procedural and does not affect Plaintiff No. 2's independent claim. The court's order dated 20.09.2024 permitted Krishan Kumar's impleadment, and no evidence shows he is not a Class I heir under the HSA.
71. Hence, it is held that, the DLR Act is inapplicable, and Plaintiff No. 2's rights under the HSA are clear. The plaint complies with CPC requirements, and the impleadment issue does not invalidate Plaintiff No. 2's claim. Accordingly, this issue is decided in favor of the plaintiffs and against the defendants.
Issue No. 6: Whether the civil court has jurisdiction to entertain the present Digitally signed by suit? OPD SHILPI SHILPI JAIN M M Date:
JAIN 2025.09.27 16:14:01 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 38 of 62
72. Admittedly, suit property is urbanized in the year 1963. Ld. counsel for plaintiff submitted that, bar of DLR is not more applicable due to urbanization of suit land. However, Ld. counsel for defendant submitted that, despite urbanization of the suit land, bar of DLR would still be applicable to the present matter as it cannot be applied retrospectively. But, this court does not find any merit in the submissions of defendant.
73. Recently, in Mohinder Singh v. Narain Singh37, Hon'ble Supreme Court of India, after harmonising the provisions of the Act, DLR 1954 and DMC Act 1957, viewed that once a notification has been published in the exercise of power under Section 507(a) of the DMC Act, 1957, the provisions of the DLR Act, 1954 cease to apply. In sequel thereto, the proceedings pending under the DLR Act, 1954 become non est and lose its legal significance.
74. Since suit property already urbanized vide notification dt. 23.05.1963 barred under Section 185 of DLR Act shall not be applicable. This issue is decided in favour of plaintiff accordingly.
Issue No. 8: Whether the suit has not been properly valued for the purpose of Court fee? OPD
75. Perusal of plaint reveals that plaintiff has valued the suit for the purpose of court fees and jurisdiction, relief of partition and possession of their respective share at Rs. 20,00,000/- and for relief of declaration and permanent injunction Rs. 5000/- and paid at ad valorem court fees. Digitally signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.09.27 16:14:08 37 2023 SCC OnLine SC 261 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 39 of 62
76. Onus of this issue was upon defendant but no material placed on record by defendants to substantiate their arguments. Hence, this issue is also decided in favour of plaintiffs.
Issue No. 1: Whether the plaintiffs have 1/6 undivided share each in suit property? OPP Issue No. 2: Whether the plaintiffs are entitled to partition and separate possession of their share in the suit property? OPP
77. Since both issued are interlinked, taken simultaneously.
78. At this juncture, it is imperative to discuss law on partition and to draw pedigree for the parties impleaded as per memo of parties i.e. as follows:
LATE MUNSHI RAM (DOD 27.11.1984) MANPHOOL (SON) RATAN SINGH (SON) MEER SINGH (SON) RAGHUBIR SINGH RAM CHANDER (SON) CHANDRAWATI (DAUGHTER) PLAINTIFF NO. 1 DEFENDANT NO. 2 DEFENDANT NO. 3 (S0N) DEFENDANT NO. 1 PLAINTIFF NO. 2 (SINCE DECEASED) (PREDECEASED) (SINCE DECEASED) DEFENDANT NO. 4 (SINCE DECEASED) (SINCE DECEASED) (SINCE DECEASED) KRISHAN KUMAR LEELAWATI PREMWATI SHAKUNTLA (WIDOW VIDYA DEVI (LR 1) (DAUGHTER) (DAUGHTER) OF PREDECEASED SON) (WIDOW) SARASWATI RAM AVTAR (SON) RAM KUMAR (SON) (WIDOW) MANOJ SINGH (S/O DILER SINGH (SON) ASHOK KUMAR RAMESH (SON) LATE RAJ SINGH) SUBHASHISH (SON) (SON) DILBAGH SINGH VIPIN KUMAR (S/O (SON) VIMLA (DAUGHTER) KARAN SINGH LATE RAJ SINGH) VIJAY KUMAR (SON) (SON) SUMAN KAMLESH KAVITA (S/O LATE (DAUGHTER) SUMITRA RAJ SINGH) AJAY KUMAR (SON) (DAUGHTER) (DAUGHTER) SUNITA (D/O LATE MEENA RAJ SINGH) (DAUGHTER) SARITA (D/O RAJ SINGH) 'Partition' is a re-distribution or adjustment of pre-existing rights Digitally signed by 79. It is settled that, 'partition' is a re-distribution or adjustment of SHILPI SHILPI JAIN M M JAIN Date:
2025.09.27 pre-existing rights, among co-owners/coparceners, resulting in a division of 16:14:14 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 40 of 62 lands on other properties jointly held by them, into different lots or portions 'separation of share' is a species of 'partition' which involved three issues. (i) Whether the person seeking division has a share or interest in the suit property?; (ii) Whether he is entitled to the relief of division and separate possession?; and (iii) How and in what manner the property should be divided by metes and bounds?38. Order XX Rule 18 CPC39, further provide procedure for passing decree in suit for partition of property or separate possession of the share therein.
80. Admittedly late Munshi Ram was owner of suit property and left for heavenly abode on 27.11.1984. This is also the admitted fact that late Sh.
Munshi Ram was having five sons and one daughter but it is the contention of defendant is since Manphool Singh i.e. plaintiff No.1 has given in adoption in his tender age to Mr. Munni, his entire right towards the Munshi Ram property extinguished.
81. At the juncture, it is imperative to discuss law on adoption.
Law on Adoption Prior to Hindu Adoption & Maintenance Act, 1956
82. The Hindu Adoptions and Maintenance Act, 1956 was enacted by Parliament "to amend and codify the law relating to adoptions and 38 Shub Karan Bubna @ Shub Karan Prasad Bub v. Sita Saran Bubna and Ors. 2009 (9) SCC 689 39 Order XX Rule 18 CPC- Decree in suit for partition of property or separate possession of a share therein
-- Where the Court passes a decree for the partition of property or for the separate possession of a share therein then--
(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54; (2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary Digitally signed by decree declaring the right of the several parties interested in the property and giving such further directions SHILPI SHILPI JAIN M as may be required.
M Date:
JAIN 2025.09.27
16:14:20
+0530
CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 41 of 62
maintenance among Hindus". Section 440 gives overriding force and effect to the Act over any text, rule or interpretation of Hindu law or any custom or usage prevalent before the commencement of the Act and over any other law in force immediately before the commencement of the Act insofar as it was inconsistent with the provisions of the legislation.
83. Now, it is important to analysis law on adoption prior to codified law and defendants claim adoption somewhere in the year 1950. Mulla's Principles of Hindu Law, a widely respected authority on Hindu law, provides detailed insights into adoption practices among Hindus prior to the Hindu Adoption and Maintenance Act (HAMA), 1956, based on traditional Hindu texts, customs, and judicial interpretations.
84. According to Mulla, adoption in pre-HAMA Hindu law was primarily a religious and sacramental act governed by shastric texts (e.g., Manusmriti, Dattaka Mimansa, and Dattaka Chandrika) and local customs. The main purpose was to secure spiritual benefits, such as continuing the family lineage and ensuring the performance of pinda daan (funeral rites) for ancestors.
85. In their Written Statement, Defendants pleaded following averment qua adoption:
40 Section 4.Overriding effect of Act.―Save as otherwise expressly provided in this Act,― (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is Digitally signed by made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease SHILPI M to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
SHILPI JAIN M JAIN Date:
2025.09.27 16:14:27 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 42 of 62 Preliminary Objections:
2. That there is no cause of action in favour of plaintiffs because although plaintiff No.1 Manphool Singh was born in the family of Munshi but he was adopted by Munni whose property he has inherited and plaintiff No.2 Smt. Chander Pati being a female does not inherit when male members are there as per Section 50 of the Delhi Land Reforms Act. These facts are borne from the Will of Munshi and otherwise also Agricultural land in question being self owned, rights has been given to defendants only, which is legal and valid.
Reply on Merits:
1. Paragraph 1 is correct in so far as the sons and daughter of Munshi Ram at the time of Birth but in fact Manphool Singh was adopted by Munni whose property he inherited and had no relation with the family of Munshi Ram after his adoption. This is what is stated in the Will of Munshi Ram, which was filed in the Writ Petition No.363/1983 alongwith an application for substitution of this LRs.
to which all the said parties signed and never raised any objection. Similar was the position before the Revenue Assistants where cases between Shri Joti Prashad and Munshi were pending and in all these cases, the defendants were substituted as LRs. This happened as early as in the year 1985 and it is too late to say that Manphool Singh had anything to do with the family of Munshi Ram. The present suit filed in 2009 is by way of mischief to harass the defendants.
2. Paragraph 2 is wrong when it calls Munshi Ram ancestor of Manphool Singh, who is left with no relation in the family due to adoption by Munni. It is correct that Munshi Ram owned 7000 yds of land and this is held so by the Hon'ble High Court of Delhi, which now vests with his sons being the defendants. This is borne by the Revenue records as well being agricultural land. The vesting of rights of Bhoomidhar in defendants is duly recorded in Revenue records, copies of Girdwari and Khatoni which is a depiction of rights in land are filed herewith. It is not admitted that Municipal records show this as a MR Block but even it be so the same has no meaning as this land is governed by the Delhi Land Reforms Act.
(Emphais is mine) Digitally
86. It is well settled law that, burden to proving facts raised upon the signed by SHILPI M SHILPI JAIN party which substantially asserts the affirmation of the issue. In the matter of M JAIN Date:
2025.09.27 16:14:34 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 43 of 62 Anil Rishi Vs. Gurbaksh Singh (2006) 5 SCC 558 of Hon'ble Supreme Court of India held as follows :
"8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:
"101. Burden of proof. 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."
9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an excep- tion thereto. The learned trial court and the High Court pro- ceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
XXXXXX
15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words "active confidence"
indicate that the relationship between the parties must be such that one is bound to protect the interests of the other.
XXXXXXX
19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate 9 the duty of bringing forward evidence in support of a proposition at the beginning or Digitally signed by later, (ii) to make that of establishing a proposition as SHILPI SHILPI JAIN M against all counter-evidence; and (iii) an indiscriminate use M JAIN Date:
2025.09.27 in which it may mean either or both of the others. The ele-
mentary rule in Section 101 is inflexible. In terms of Sec- 16:14:52 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 44 of 62 tion 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
(Emphasis is mine)
87. To discharge their onus for adoption, defendants examined two witnesses i.e. DW-1 namely Dalip Singh who claimed to be the eye witness of adoption ceremony. He deposed that his father was good friend of late Sh. Munshi Ram and he alongwith his father in November - December, 1950 attended function of adoption of son of Late Munshi Ram i.e. Manphool (plaintiff No.1 herein) by Sh. Munni Ram who had no children. He further deposed that said adoption function took place in the house of Munni Ram and Haven ceremony was also organized in the presence of 40 people from the village Khaira and relative of Munni Ram and Munshi Ram were also present. He further deposed that in said function one Pandit was also present who after the hawan ceremony declared that Sh. Manphool being the adopted son of Sh. Munni Ram and Sh. Munshi Ram gave the physical custody of Sh. Manphool to the Munni Ram and thereafter Manphool resided with late Sh. Munshi and his wife being their adopted son. DW-1 further deposed that in the year 1962, his sister namely Smt. Saraswati also got married with another son of Munshi Ram namely Sh. Raghuveer Singh and at that time also Manphool was residing with Munni Ram.
88. During the course of arguments, Ld. counsel for the plaintiff vehemently disputed the deposition given on behalf of DW-1 as witness to adoption ceremony. It is submitted that DW-1 is planted witness as factum of eye witness is totally absent in the pleading. Moreover, as per WS, Digitally signed by SHILPI SHILPI JAIN M defendants came to know about factum of adoption by purported Will dated M Date:
JAIN 2025.09.27 16:14:58 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 45 of 62 08.06.1963. Further, name of DW-1 is nowhere included in the list of witnesses filed on behalf of defendants in the year 2018.
89. Careful perusal of cross examination of DW-1 reveals that DW-1 stated to be 10 years old at the time of adoption ceremony i.e. in the year 1950 and is of 85 years old as on date of deposition. Thus entire deposition was based upon the memory for 75 years old event. But perusal of cross examination of DW-1 reveals that it was given in so accurate manner which is normal recourse not possible. Infact at one point of time DW-1 depose that "initially hawan was held . Thereafter, Manphool was handed over to Munni by Munshi. Thereafter Patasha distributed. Thereafter lunch took place at around 01:00 PM. Thereafter, attendees returned to their home. Munni was wearing one shirt and dhoti that day. Similar attire was wore by Munshi. Shirt and dhoti was of white color. Similar clothing was wore by Manphool as well. Hawan was started by Pandit. All respective persons duly participated the same.
90. In his entire cross examination DW-1 duly quantified number of attendees, exact time of haven, its duration and conclusion which is not possible for the prudent person to recall after 75 years of the event. For the purpose of clarification, cross examination of DW-1 is reproduce herein below:-
XXXXX of DW-1 Sh. Dalip Singh, S/o Late Sh. Girdhari Lal "I am matric pass.
Q1. Where were you residing in the year 1950? Digitally signed by Ans. I was residing at Wazirabad village, District Gurugram. SHILPI M SHILPI JAIN Q2. How far your present residential address is from your M JAIN Date:
2025.09.27 16:15:03 residence in 1950?
+0530 Ans. About 20-22 kilometers.
CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 46 of 62 Q3. What was the distance between your residence in 1950 and village Najafgarh, Delhi?
Ans. About 25 kilometers.
Q4. What was your age in the year 1950? Ans. 10 years.
Q5. In which class you were studying at that time? Ans. 5th class.
Q6. On the alleged date of adoption, how did you commute from your residence upto the village Khera, Najafgarh? Ans. I accompanied my father at the bicycle. Q7. At what time did you start from your residence and what time you reached at village Khera, Najafgarh? Ans. We started at 07:00 AM and reached there at 09:00 AM. Q8. On which date the alleged adoption ceremony had taken place?
Ans. It was November-December. However, I do not recall year as I was 10 years old at that time. Q9. Can you tell whether it was November or December? Ans. I cannot say definitely but, it was winter season. XXXXX XXXXXXX XXXXXX Q16. Had you any knowledge about the family members of the plaintiff (Manphool Singh) in the year 1950?? Ans. I only had knowledge about Munshi i.e. father of Manphool Singh and Munni i.e. Tau of Manphool Singh. Q17. That means you were having no knowledge about the brothers of Manphool Singh in the year 1950? Ans. Yes. It is correct. (vol. Jab main yahan aaya tha to adoption ka function dekha tha, usme jankari hui thi jab Manphool ko god liya gaya tha) Q18. Who told you that it was the function of adoption of Manphool Singh. Ans. My father had told me. (my father had taken me to the said function).
Q19. Did your father told you anything or any detail about the Digitally family members of Manphool Singh?
signed by SHILPI SHILPI JAIN M Ans. Yes. My father had told me that, Munshi Ram was M JAIN Date:
2025.09.27 having five sons including plaintiff and one daughter. It was also told by my father that, Manphool was the oldest, then 16:15:08 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 47 of 62 Ram Chander (fouji), Ratan Singh, Mir Singh, Raghubir Singh and Chander Kala (daughter).
Q20. So will it be right to say that all his brother's and sister of Manphool Singh were present on alleged function of adoption?
Ans. Yes. They all were present at the said function. Q21. Can you tell what was the age (approximately) of Manphool Singh on the date of alleged function of his adoption ?
Ans. According to me he must be 19-20 years at that time. Q22. Do you know Mr. Narain Singh ?
Ans. Haan ab jaanta hu main. He is son of my Tau of my brother-in-law (behnoi).
Q23. Will it be true to say that Mr. Narain Singh was also present in the alleged function of adoption allegedly attended by you?
Ans. Yes, he was also present.
XXXXXX XXXXXX XXXXXX Q27. Are you aware about the occupation of Munshi and Munni in the year 1950?
Ans. Zamindar aadmi the, kheti-badi karte the. Q28. Was there any connection in the occupation of Munshi and Munni and your father?
Ans. No. (vol. Yari dosti thi) Q29. What was the age of your father in the year 1950? Ans. He may be around 40-45 years of age. Q30. Can you tell what was the approximate age of Munshi and Munni in the year 1950?
Ans. I am not aware as I was only 10 years old at that time. Q31. Are you aware about the date of death of your father? Ans. In the year 1986-87.
XXXXX XXXXX XXXXX Q34. At what time alleged hawan ceremony took place and how long it continued? What happened after conclusion of Digitally signed by alleged hawan ceremony?
SHILPI SHILPI JAIN M Ans. 10 AM and continued for 30-45 minutes. After M Date:
JAIN 2025.09.27 16:15:15 conclusion of hawan ceremony, all attendees returned to their +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 48 of 62 respective places after taking patasa and having food. We also returned at around 2:00 - 2:30 PM.
XXXXX. XXXXXX XXXXXX Q3. Please tell how many family members attended the alleged ceremony in the year 1950?
Ans. There were around 40 family members. (vol. May be around 10 more guests also joined the ceremony). Q4. How many members from your family attended the alleged ceremony in the year 1950?
Ans. Two.
Q5. Where did the alleged ceremony had taken place? Ans. At the house of Munni at Village Khera, Najafgarh. The house of Munni was kaccha house at that time, however, I do not recall the measurement of the house. Munni, Munshi and Mam Chand were residing at Village Khera, Najafgarh in the same house, at that time.
Q6. Can you please explain nature of alleged ceremony from beginning to end?
Ans. Initially Hawan was held. Thereafter, Manphool was handed over to Munni by Munshi. Thereafter Patasha distributed. Thereafter lunch took place at around 01:00 PM. Thereafter, attendees returned to their home. Munni was wearing one shirt and dhoti that day. Similar attire was wore by Munshi. Shirt and dhoti was of white color. Similar clothing was wore by Manphool as well. Hawan was started by Pandit. All respective persons duly participated the same.
Q7. Were you aware about requisite cremonies for adoption in the year 1950?
Ans. I was not aware. (vol. Maine to wahan dekha tha, usse pehle koi jaankari nahi thi).
It is wrong to suggest that Manphool returned to his original place of residence after alleged adoption. (vol. Wo to munni ke paas raha naa, adoption hone ke baad). I am not aware whether Digitally any written adoption deed was executed. Manphool changed SHILPI signed by SHILPI M his father's name after adoption, however, I have not seen any JAIN M Date: document for the same.
JAIN 2025.09.27
16:15:22
+0530
CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 49 of 62
Q8. I put it to you that you have no personal knowledge of change of father's name. What do you have to say? Ans. It is correct.
My father informed about function of alleged adoption when we started from our home."
(emphasis is mine)
91. Thus, considering facts and circumstances of the present case and material placed on record by the parties this Court is not inclined to accept factum of adoption for following reason:
91.1 The defendants allege Plaintiff No. 1 was adopted by Shri Munni in 1950, relying on DW1's Testimony wherein DW1 (Sh. Dalip Singh) claimed to be an eyewitness to a 1950 adoption ceremony, stating he attended with his father and saw a hawan, transfer of custody of 18 years old adult, and celebrations (Ex.DW1/A). However, DW1 was 10 years old at the time, and his detailed recollection of attire, timing, and attendees after 75 years is implausible. His cross-examination reveals inconsistencies, such as inability to recall date, wearing of summer cloths in winter season and reliance on his father's statements, rendering his testimony hearsay;
91.2. Further, plaintiffs' witnesses (PW1, PW2) denied any adoption ceremony, and the defendants' failure to cross-examine them initially weakens their case;
91.3 Deposition of DW1 is beyond the pleading. Defendants stated to came to know about factum of adoption via purported Will only;
Analysis of "Bhami Faisla"
92. Further, again beyond pleadings, defendants put forth new Digitally signed by SHILPI SHILPI M JAIN M defence during their evidence about "Bhami Faisla" dated 24.06.1961 and Date:
JAIN 2025.09.27 16:15:27 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 50 of 62 examined Sr. Assistant BDO Office as DW-2 who brought so called Bhami Faisla dated 24.06.1961 (Ex. DW2/1) (OSR) and certify copy of 'Bhami Faisla' dated 26.07.1973 (Ex. DW2/2) (OSR). However, his deposition strongly disputed on behalf of Ld. counsel for the plaintiff on the ground that examination of DW-2 is beyond the pleadings.
93. For the purpose of clarification, 'Bhami Faisla' dated 24.06.1961 and dated 26.07.1973 are reproduced herein below:
BHAMI FAISLA DATED 24.06.1961 Digitally signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.09.27 16:20:27 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 51 of 62 +0530 BHAMI FAISLA DATED 26.07.1973
94. However, above Bhami faisla, does not invite any confidence of this Court for following reasons:
(a) Bhami Faisla dated 24.06.1961 and Bhami Faisla dated 26.07.1973 are two different document, executed by different executant with unclear description of subject matter. In any case, Bhami Faisla dated 24.06.1961 (Ex.DW2/1) does not prove factum of adoption rather specifically mention about 'PAANCH LADKE OF OF MUNSHI';
(b) The defendants introduced Bhami Faisla dated 24.06.1961 Digitally (Ex.DW2/1) and 26.07.1973 (Ex.DW2/2), claiming they record signed by SHILPI SHILPI M JAIN Plaintiff No. 1's adoption and exclusion from Munshi Ram's estate. M JAIN Date:
2025.09.27 16:26:27 +0530 But, these documents were not pleaded in the written statement, CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 52 of 62 violating Order VI Rule 2 CPC, which prohibits evidence beyond pleadings;
(c) DW2 admitted the documents were submitted in 1991 without verification, and the Pradhan's relation to the defendants raises doubts about authenticity. They lack presumption under Section 35 of the Indian Evidence Act due to procedural irregularities and late submission;
WHETHER FINDING OF PROBATE COURT IS RES JUDICATA FOR CIVIL COURT.
95 During the course of arguments, Ld. Counsel for plaintiff vehemently submitted that plea of adoption is based upon alleged Will dt. 08.06.1983 as pleaded in preliminary objection no. 2 in WS but, said Will has already been discarded/rejected by disapproving the alleged claim of adoption by plaintiff no. 1 vide judgment/order dt. 12.10.1993 (Ex.PW1/7) in probate proceedings. It is submitted that, said judgment and order which rejected the Will and plea of alleged adoption has already attained finality hence, re-agitation of said plea is otherwise barred by principle of res judicata. Ld. Counsel for plaintiff further relied upon the judgment passed division bench of Hon'ble Madras High Court in case of Alagammai & 4 Others vs. Rakkammal (AIR 1992 Mad 136 (DB) as well as by Honble Gujarat High court in the case titled as Smt. Multivahuji W/o Goswami Goverdhaneshji Girdharlalji vs. Smt. Kalindivahuji and others AIR 1994 Guj 42 in support of his submission.
96. In Alagammai (Supra) it was held as follows:
"7. As between the decision rendered by an ordinary civil court and the decision rendered by a Probate Court, on the question of truth, validity, genuineness and duc execution of a Will, the Digitally signed by decision of the Probate Court is a judgmentin rem, which will SHILPI SHILPI JAIN M M Date:
JAIN 2025.09.27 16:25:24 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 53 of 62 bind not only the parties before it, but the whole world is a well accepted proposition, which does not admit of any dispute. The decision of the ordinary civil court, dealing with the same question adjudicating the same issue, would not constitute a judgmentin rem. Such is the sanctity annexed to the decision of the Probate Court, which is a court of exclusive jurisdiction. The Probate Court is a Court of conscience. It applies its mind to find out as to whether the document put forth is the last Will or Codicil of the deceased. It must arrive at the satisfaction as to the due execution of the document. It must be satisfied as to the testamentary capacity of the deceased. It is an exclusive court dealing with probate matters in contrast to the ordinary civil court, which is concerned only with deciding rights between the par-ties. The Probate Court does not decide rights between parties. Once the Probate Court renders its decision, that will take precedence on the relevant questions, over the decisions of courts of ordinary civil jurisdiction at all levels and will be binding on proceedings pending before such courts. These principles are so well known, we do not think we should cite authorities for them.
8. However, a judgment in rem is also open to attack on grounds specified in S.44 of the Indian Evidence Act. They are want of jurisdiction on the part of the court, and fraud or collusion vitiating the judgment. In the present case, at the time of the decision rendered by the first court, and again at the time of the decision rendered by the learned single Judge on appeal, the decision of the High Court of Malaya granting granting probate of the Will as per Ex.B.4 alone has bec has been obtained. That was found to be not sufficient and for want of Ancillary Probate under S.228 of the Indian Succession Act, the Will was not acted upon and was eschewed from consideration. Subsequently, while this Letters Patent Appeal has been pending, the District Court, Ramanathapuram at Madurai, has been moved in O.P.No.1 of 1984 and by judgment and decree dated 26.10.1988, Ancillary Probate has been obtained."
97. In Smt. Multivahuji (Supra) it was held as follows:
Digitally signed by "14. A Probate Court is a Court of conscience and it does not decide SHILPI SHILPI JAIN M the rights between the parties. A Probate Court has to deliver a M JAIN Date:
2025.09.27 judgment which would become a judgment in rem and this 16:25:29 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 54 of 62 judgment will bind not ony the parties before it but the whole world. In the case of Kalyanchand Lalchand v. Sitabai Dhanasa, reported in AIR 1914 Bombay 8 a Full Bench of the Bombay High Court has held that contentious probate proceedings being required to be in the form of suits under S. 295 of the Act, constitute 'suits' under S. 11 of the Code of Civil Procedure and a finding by a Probate Court in such proceedings operated as res judicata under S. 11 as between the parties thereto. The probate proceedings must take the form as nearly as may be of a suit according to the provisions of the Civil Procedure Code, in which the petitioner for probate or letters of Administration shall be the plaintiff, and the person who may have appeared to oppose the grant shall be the defendant. There is no definition of the word "suit" either in the Civil Procedure Code or in the General Clauses Act and, therefore, the Full Bench held that contentious probate proceedings must take the form of a suit. A judgment as a rule affects only the parties thereto and their privies. Judgments is rem form an exception to this rule and are valid not only inter partes but against all the world. Ss. 40 to 44 of the Evidence Act deal with the relevancy of judgments of courts of justice. S. 41 deals with final judgments, decrees or orders of competent courts in the exercise of probate, matrimonial adminaralty or insolvency jurisdiction or what are known as judgments in rem and in states that such judgments, decrees or orders are conclusive proof of the matters specified in the Section and by S. 4 of the Evidence Act, evidence cannot be allowed to disprove the facts established by such judgments. In any probate proceeding prosecuted to the final judgment, that judgment, whether for or against the will is a judgment in rem and, if against the will, takes away the legal characters of all those claiming to be executors and legatees under it, as conclusively as a judgment for the will confer such character upon them. The judgments in rem are nothing but a part of the law of res judicata. Just as every judgment inter partes upon the same materials is res judicata between them and their representatives. So in a special class of cases the judgment is res judicata not only inter partes but extra partes contra mandum. Therefore, in every case, where the judgment is in rem, if it would have been res judicata inter partes, it is also res judicata against all the world."
Digitally signed by SHILPI SHILPI JAIN M 98. However, Ld. Counsel for defendant vehemently opposed M Date:
JAIN 2025.09.27 16:25:35 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 55 of 62 submissions made by the plaintiff. It is submitted that, probate proceedings are limited to the genuineness of the Will and has nothing to do with the content thereof hence, any finding given on issues which are not relevant cannot be said to be res judicata rather, same is obiter dicta.
99. This court has carefully gone through the material available on record as well as submissions by the parties.
Doctrine of RES JUDICATA
100. For the principle of res judicata to be applied in the subsequent proceeding, it must be between the same parties and the cause of action of the subsequent proceeding must be the same as in the previous proceeding. The Supreme Court in the case of Satyadhyan Ghosal v. Deorajin Debi41 has succinctly noted that the principle of res judicata is essential in giving a finality to judicial decisions by observing as under:
"The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter -- whether on a question of fact or a question of law -- has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. The principle of SHILPI res judicata applies also as between two stages in the same M JAIN litigation to this extent that a court, whether the trial court or a Digitally signed by SHILPI M JAIN Date: 2025.09.27 41 [1960] 3 SCR 590 16:25:43 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 56 of 62 higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. ..."
101. The probate court's dismissal of the Will dated 08.06.1983 (Ex.PW1/7), which included the adoption claim, is a judgment in rem, binding all parties. In considered opinion of this court, the defendants' argument that adoption was not directly at issue is unpersuasive, as the Will's rejection encompassed related claims, including adoption, and attained finality after the appeal's dismissal as withdrawn (Ex.PW1/11).
APPLICABILITY OF DOCTRINE OF ESTOPPEL
102. Section 121 of Bharatiya Sakshya Adhiniyam, 202342 incorporates the meaning of estoppel as when one person either by his act or omission, or by declaration, has made another person believe something to be true and persuaded that person to act upon it, then in no case can he or his representative deny the truth of that thing later in the suit or in the proceedings. In simple words, estoppel means one cannot contradict, deny or declare to be false the previous representation or act done by him.
103. The defendants claim estoppel, alleging the plaintiffs' acquiescence in prior litigation. However, no evidence shows the plaintiffs made a representation or acted to their detriment, as required for estoppel.
104. Now, next question is whether legal representative within the 42 121. Estoppel.--When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his Digitally representative, to deny the truth of that thing. signed by Illustration: A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces SHILPI SHILPI JAIN M B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on M Date: the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title. JAIN 2025.09.27 16:25:48 +0530 CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 57 of 62 meaning of Order XXII Rule 3 CPC is similar to the legal heir as specified in Hindu Succession Act?
LEGAL REPRESENTATIVE WITHIN THE MEANING OF ORDER XXII RULE 3 CPC VIS-A-VIS LEGAL HEIR AS SPECIFIED IN HINDU SUCCESSION ACT
105. A "legal representative" under Order XXII Rule 3 43 of the Code of Civil Procedure (CPC) is not the same as a "legal heir" under the Hindu Succession Act; a legal representative is a broader term encompassing anyone who represents a deceased person's estate for a lawsuit, while a legal heir is more specific to inheritance law and usually refers to family members who inherit property. A legal heir can become a legal representative by applying to the court to be substituted in place of the deceased party in a legal proceeding, and the court determines who is qualified to represent the estate
106. Ld. Counsel for defendant submits that, since adoption of plaintiff no. 1 taken place prior to implementation of Hindu Succession Act, 1956, it is governed by customary laws only wherein there is no requirement of adoption deed. It is further submitted that, though there is no formal adoption deed but factum of adoption can be ascertained as same is acted upon by the parties. It is further submitted that, during the proceedings before Hon'ble High Court of Delhi in WP(C) no. 362/1983, Late Sh. Munshi Ram left for heavenly abode on 27.11.1984 and after his demise an application u/o XXII Rule 3 CPC for impleadment of LRs of deceased plaintiff was filed duly signed/thumb impression by all children of late Sh. Munshi Ram of Late Digitally signed by Sh. Munshi Ram including plaintiff no. 1 herein. It is further submitted that, SHILPI M SHILPI JAIN 43 Procedure in case of death of one of several plaintiffs or of sole plaintiff.--(1) Where one of two or more M JAIN Date:
2025.09.27 plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole 16:25:54 +0530 plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 58 of 62 in said application, plaintiff no. 1 did not claim as LR of Late Sh. Munshi Ram as suit property was not bequeathed in his favour in Will executed by Late Sh. Munshi Ram. It is further argued that, against the order of said writ petition LPA was preferred wherein plaintiff no. 1 referred as adopted son of Munni Ram but not disputed by plaintiff no. 1 during the proceedings.
107. However, perusal of application under Order XXII rule 3 and 11 read with Section 151 CPC and Section 50 of DLR Act reveals that said substitution application filed on the basis of Will only purportedly executed by late Sh. Munshi Ram during his life time probate petition qua the same is already been dismissed.
108. The defendants cite Plaintiff No. 1's alleged thumb impression on an application in WP(C) No. 362/1983 (Ex.PW1/6) and his description as Munni's adopted son in LPA No. 436/2008. However, Plaintiff No. 1 was not a party to the substitution order, and the thumb impression's authenticity is not proved. No conclusive evidence shows Plaintiff No. 1 acquiesced to the adoption claim, and PW1's testimony denies any such admission. In considered opinion of this court, the substitution order in WP(C) No. 362/1983 did not involve the plaintiffs, and their non-participation in prior title disputes does not preclude partition claims.
109. In nutshell, the plaintiff's (as biological children of Munshi Ram (deceased 27.11.1984)), claim of 1/6th share each in the undivided suit property under the HSA, applicable, due to Najafgarh's urbanization in 1963.
Digitally Munshi Ram's intestate death (Will rejected in Ex.PW1/7) results in six legal signed by SHILPI SHILPI heirs (five sons, one daughter), each entitled to a 1/6th share.
M
JAIN
M Date:
JAIN 2025.09.27
16:26:00
+0530
CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 59 of 62
110. However, in considered opinion of this court, the suit property is undivided, as no prior partition is evidenced. The plaintiffs' evidence (Ex.PW1/1-11) and the probate court's findings establish Munshi Ram's intestate death, resulting in six equal shares among his heirs. The plaintiffs' right to partition is supported by Order XX Rule 18 CPC, and demarcation by metes and bounds is feasible given the property's size and urban characteristics. Hence, it is concluded that, plaintiffs, as Munshi Ram's biological children, each hold a 1/6th undivided share under the HSA. They are entitled to partition and separate possession, as the defendants' defences lack merit. In view thereof, both issues are decided in favour of plaintiffs.
Issue No. 7: Whether the plaintiffs are entitled to injunction prayed for?
OPP
111. The plaintiffs seek a perpetual injunction restraining the defendants from alienating, transferring, encumbering, or parting with possession of their 1/6th share each (2/6th collectively). A status quo order was issued on 22.05.2009 and confirmed on 28.10.2014. In view of forgoing discussion , plaintiff has entitled injunction as prayed for. Hence, this issue is decided in favour of plaintiff.
Relief (Conclusion)
112. In view of the foregoing analysis, the suit is decreed as follows:
a. A perpetual injunction is granted, restraining the defendants, their agents, assigns, or any person acting on their behalf from alienating, Digitally signed by transferring, encumbering, or parting with possession of the plaintiffs' SHILPI SHILPI M JAIN M Date: 2/6th share (collectively for Plaintiffs Nos. 1 and 2) in the suit JAIN 2025.09.27 16:26:07 +0530 property.
CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 60 of 62 b. It is declared that Plaintiff No. 1 and Plaintiff No. 2 each hold a 1/6th undivided share in the suit property, described as Munshi Ram Krishi Farm, Papravat Road, Najafgarh, Delhi, originally recorded as Rectangle No. 30, Kila No. 1/3 (2 Bigha 15 Biswas) and Kila No. 10 (4 Bigha 5 Biswas) in the Revenue Estate of Village Najafgarh. Share of each party shall be as follows:
a) LRs of deceased Plaintiff No. 1 : 1/6th Share
b) LRs of deceased Plaintiff No. 2: 1/6th Share
c) LRs of deceased Defendant No. 1: 1/6th Share
d) LRs of deceased Defendant No. 2: 1/6th Share
e) LRs of deceased Defendant No. 3: 1/6th Share
f) LRs of deceased Defendant No. 4: 1/6th Share c. However, unless the suit property is partitionable by metes and bounds, decree qua the partition as per the share of the parties as determined in above para cannot be granted at this stage. Hence, to ascertain whether suit property is partitionable by metes and bounds, this court deems it fit that an opportunity should be granted to the parties to advise a method as to how best the suit property can be partitioned by metes and bounds after consulting with each other. For this purpose, time is granted to the parties to explore the possibility of partitioning the suit property by metes and bounds effectively and apprise the same to the court on NDOH.
Digitally signed by SHILPI SHILPI JAIN M
113. Decree sheet shall be prepared accordingly..
M Date:
JAIN 2025.09.27
16:26:12
+0530
CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 61 of 62
114. Put up for further proceedings on 30.10.2025.
Digitally signed by SHILPI SHILPI JAIN M Announced in open court M JAIN Date:
2025.09.27 on 27.09.2025 16:26:18 +0530 (SHILPI M JAIN) DISTRICT JUDGE-05 DWARKA COURTS, NEW DELHI CS DJ ADJ 312/17 Manphool Vs. Ram Chander Page No. 62 of 62