Delhi District Court
Arjun Choudhary vs . Anil Sharma on 17 August, 2013
Arjun Choudhary Vs. Anil Sharma
IN THE COURT OF SHRI VIRENDER KUMAR BANSAL : ADDL.
DISTRICT JUDGE (CENTRAL) 08, TIS HAZARI, DELHI
C.S. No. 235/11
ID No. 02401C0820292003
Arjun Choudhary (Minor)
through his mother,
Anuradha Chaudhary,
As natural guardian
r/o I-43, Jangpura Extn.
New Delhi
... Plaintiff.
Vs.
1.Anil Sharma
son of Sh.Bal Ram Sharma.
2.Sh.Bali Ram Sharma
both r/o Sharma Farms,
Chattarpur,
New Delhi.
3.Sh.Ajay Chaudhary
s/o Late Ch.Brahm Parkash
r/o I-43, Jangpura Extn.
New Delhi.
...Defendants
Date of institution of the suit: 11.04.2001
Date of reserving judgment : 14.08.2013.
Date of judgment : 17.08.2013
JUDGMENT
1. Arjun Chaudhary (hereinafter referred as plaintiff) filed the suit for declaration, possession and permanent injunction against Sh.Anil Sharma (hereinafter referred as defendant no.1), Sh.Bali Ram C. S. No. 235/11 1 Arjun Choudhary Vs. Anil Sharma Sharma (hereinafter referred as defendant no.2) and Sh.Ajay Chaudhary (hereinafter referred as defendant no.3). Plaintiff was minor when he filed the suit. The suit was filed through natural guardian Anuradha Chaudhary, the mother. But during the pendency of the suit he attained majority. Plaintiff alleged that Choudhary Brahm Prakash grand father of the plaintiff and father of the defendant no.3 was having agricultural land in Village Shakurpur, Delhi. The land was compulsorily acquired by the Government. The compensation was received by the grandfather. From that amount he purchased the land in Village Chattarpur, New Delhi in khasra no.802, (0-11) biswas prior to 1960 governed by Punjab Tenancy Act. Since then the grand father of the plaintiff had been in continuous possession as owner of the said land. As the land in question was purchased out of the compensation received with respect to the ancestral land, hence it also became ancestral property. The family of the plaintiff is governed by the customary law, according to which the ancestral property of the plaintiff can not be alienated or sold out or transferred to any person without any legal necessity and benefit of the family. It is alleged that a week ago a quarrel ensued between the mother of the plaintiff and defendant no.2 on the question that defendant no. 3 entered into transaction along with defendant no.1 and 2 with respect to the suit property for inadequate consideration of Rs.1 lac, whereas the price of the same is not less than Rs.8 lacs. Mother of the plaintiff was rebuking the defendant no.3 that the transaction made by the defendant no.3 is for ulterior motive of enjoyment as he is extravagant and is drunkard. From this he came to know about transaction between defendant no.3 and C. S. No. 235/11 2 Arjun Choudhary Vs. Anil Sharma defendant no.1 and 2. Defendant no.3 has sold the property without consent or knowledge of the plaintiff for inadequate price to deprive the plaintiff of his right in the ancestral property without any legal necessity or welfare of the family. Therefore, the transaction is illegal, null and void and not binding upon the plaintiff. Plaintiff approached defendant no.1 and 2 to consider the transaction dt.14.03.01 with respect to the suit property as illegal, null and void and without any legal necessity and also not to alienate this property further and also to return the possession but they declined. Plaintiff filed the suit seeking the cancellation of the documents, possession and permanent injunction.
2. Summons sent to the defendants. Defendant no.1 and 2 filed the written statement alleging that plaintiff has no right, title or interest in the suit property and is not entitled to any relief with respect to the suit land. No cause of action arose in favour of the plaintiff and against the defendant for filing the present suit. The suit is filed by the plaintiff in collusion with his father, who is defendant no.3 in order to extract money from the answering defendants. Answering defendants had purchased an agricultural land comprising in various khasra nos.in revenue estate, Chattarpur, New Delhi from the previous bhumidhar/owners. Physical demarcation was carried out and actual physical cultivatory possession of the land was given to the answering defendants. In order to protect their agricultural land, they have also raised a boundary wall around the land. The answering defendants had also obtained sanction from the Municipal Committee for constructions of farm house over the land and they have constructed the farm house. In January 2001, defendant no.3 C. S. No. 235/11 3 Arjun Choudhary Vs. Anil Sharma approached the answering defendants alleging that he is the son of first Ex-Chief Minister of Delhi. He alleged that in the revenue record his father was recorded as the non-occupant tenant in respect of khasra no.801 (1-15) and khasra no.802 (0-11) total ad-measuring 2 bighas and 6 biswas situated in the revenue Estate of Village Chattarpur, Tehsil Hauz Khas, New Delhi. Total land i.e. 6 ¼ biswas out of khasra no.801 and 11biswas out of khasra no.802 total admeasuring 17 ¼ biswas was covered by the boundary wall and now in possession of the answering defendants. Demarcation was carried out by Revenue Authority. However, answering defendants were not party to that demarcation. The defendants refuted the claim of the plaintiff that this land forms part of khasra no.801 and 802 but defendant no.3 being highly influential person of the area started pressurizing the defendants to admit his claim and he also started harassing the defendants. The defendants left with no choice bow down to the pressure of defendant no.3 and agreed to pay a sum of Rs. 1 lac in order to achieve the peace and to avoid the confrontation. Defendant no.3 also claimed that his father executed a Will in his favour bequeathing the right, title or interest in the land measuring khasra no.801 and 802 situated in the Revenue Estate of Village Chattarpur and on the basis of that Will, the mutation was effected in the revenue record in respect of khasra no.801-802 in his name. Though the answering defendants were in possession of the land for the last 22 years. Defendant no.3 received Rs.1 lac by way of cheque from the answering defendants and surrendered, abandoned and transferred his so called right, title and interest, if any in respect of the land bearing khasra no.
C. S. No. 235/11 4Arjun Choudhary Vs. Anil Sharma 801-802 situated in the revenue estate of Village Chattarpur, New Delhi. Defendant no.3 executed agreement to sell, affidavit, special power of attorney, general power of attorney, Indemnity Bond and receipt and Will in favour of the defendants. In reply on merits the other averments are denied. It is denied that it is an ancestral property of the plaintiff or it was purchased out of the compensation received of the ancestral property of the grand father of the plaintiff. It is also denied that the plaintiff and his family is governed by the customary law, according to which the ancestral property of the plaintiff can not be alienated or sold our or transferred to any other person except for legal necessity or in welfare of family. It is denied that the consideration was inadequate or that the value of the property is not less then Rs.8 lacs. Other other facts are denied.
3. Defendant no.3 filed separate written statement mentioning that the relations of the mother of the plaintiff and defendant no.3 are not cordial. It is alleged that plaintiff is also not residing with his mother. It is alleged that the land in dispute is a joint family property and plaintiff is one of the co-parcerners in the joint family property being the son of defendant no.3. Inspite of filing of the suti by the plaintiff, the defendant no.1 and 2 are bent upon encroaching the other joint family property without consent of defendant no.3. The said land is situated adjacent to the land under dispute. Defendant no.1 and 2 are bound to restore the possession of the land which is being encroached by them. In reply on merits, he stated that the land was purchased by the grand father of the plaintiff by paying the funds out of compensation of his acquired land which was ancestral one in C. S. No. 235/11 5 Arjun Choudhary Vs. Anil Sharma Village Chattarpur, New Delhi. So far as custom is concerned, he does not admit the same and alleges that it is for the plaintiff to prove as to whether the land under dispute is governed or customary law or not? Defendant no.3 alleged that quarrel ensued between the mother of plaintiff and defendant no.3 regarding the sale of the property under dispute to defendant no. 1 and 2 about which the plaintiff was supporting his mother by claiming that the sale of the property in question is illegal. He does not deny the sale of property.
4. During the pendency of the suit defendant no.1 died and his LR's were brought on record.
5. From the pleadings of parties, following issues were framed on 24.01.05.
1. Whether the plaintiff does not have any right, title or interest in the suit property?(OPD)
2. Whether the plaintiff is entitled to the relief, prayed for?(OPP)
3. Relief.
Thereafter case was fixed for plaintiff evidence.
6. PW1 Sh.Rajiv Sharma was examined as PW1. He brought the summoned record with respect to khasra no.801 and 802 for the year 1990-91 and stated that property no.801 is in the name of Central Government. In property no.802 4/11th part is in the name of Central Government and 7/11th part is in the name of Sh.Brahm Prakash son of Bhagwan Dass but the physical possession of 802 Village Chattarpur is in the name of Sh.Brahm Prakash. He proved on record the documents as Ex.PW1/1 and PW1/2. He stated that he has never physically inspected the land of khasra C. S. No. 235/11 6 Arjun Choudhary Vs. Anil Sharma no.801 and 802 Chattarpur, New Delhi. I do not know if this land has been pruchased by Sh.Anil Sharma from Sh.Ajay Choudhary. Vol. As per record this land belong to Central Government and can not be sold. I do not know whether Sh.Brahm Prakash is alive or not. In reply to a specific question that the entries made in the khasra girdawari showing the possession of Brahm Prakash in respect of the suit land are wrong as Brah Prakash had died before 1990. He stated that he can not say as he was not patwari of this area in 1990 and I am only carrying forward the entries as on record.
7. Smt.Anuradha Chaudhary was examined as PW2. She filed her affidavit as Ex.PW2/A in evidence asserting the facts mentioned in the plaint and also produced on record the demarcation report Ex.PW2/1, Copy of jamabandi for the year 1990-91 Ex.PW2/2 and khasra girdawari Ex.PW2/3. He also proved on record the payment certificate of compensation for the land acquired by the government Ex.PW2/4. Sale certificate issued by the Ministry of Rehabitation in the name of grand father of the plaintiff is Ex.PW2/5. Copy of Naksha Muntjiman Ex.PW2/6 and the acquired award vide no.886, 1747 Ex.PW2/7. During cross examination, she stated that Brahm Prakash expired on 11.8.93.
"..... The land bearing khasra no.801-802 of Village Chattarpur, Delhi was purchased by my father in law out of the compensation amount received out of the acquisition of ancestral land situated at Village Shakurpur, Delhi. I do not have the said sale documents. It is wrong to suggest that there have been no sale documents C. S. No. 235/11 7 Arjun Choudhary Vs. Anil Sharma in respect of khasra no.801-802 for that reason I can not produce the said documents".
She denied the suggestion that khasra no.801-802 was not purchased out of compensation amount received on account of acquisition of land. She stated that she is not aware whether after demarcation of the land vide Ex.PW2/1, myhusband had demanded Rs.1 lac from defendant no.2 in respect of compensation of payment of land of khasra no.801-802 being allegedly possessed by the defendant no.1 and defendant no.2. She denied the suggestion that transaction is legal, valid and binding. Thereafter plaintiff closed the evidence.
8. Sh.Bali Ram Sharma appeared on behalf of the defendant in the witness box as DW1 reasserting the facts as mentioned in the written statement. During cross examination he stated that the property was never mutated in the name of defendant no.3. He stated that he has not filed any suit or application before any court or authority that Sh.Braham Prakash was not the rightful owner of the property. He denied the suggestion that value of the property was around Rs.8 lacs at that time.
9. Defendant no.3 did not appear in the witness box and during the pendency he was proceeded ex-parte. The case was fixed for arguments.
10. I have heard the ld.counsel for plaintiff and Ld.counsel for defendant no.1 and 2 and perused the record. My issue wise discussions are as under:
11. Issue no.1:Whether the plaintiff does not have any right, title or interest in the suit property?
Ld.counsel for plaintiff submitted that the grand father of the C. S. No. 235/11 8 Arjun Choudhary Vs. Anil Sharma plaintiff and father of defendant no.3 having ancestral agricultural land in Village Shakarpur, New Delhi. The said land was compulsorily acquired by the Government and the compensation was received by the grand father of the plaintiff. The copy of award has been placed on record which is Ex.PW2/7. The payment certificate is Ex.PW2/4 and the naksha muntijiman has been proved as Ex.PW2/6. Ld.counsel submitted that from this it is clear that the land of grand father of the plaintiff was acquired and he received the compensation amount with respect to that land. From this amount, the grand father of the plaintiff purchased the land in Village Chattarpur i.e.land in khasra no.801 (1 bigha 15 biswas) and 802 (11 biswas). The grand father of the plaintiff had been in continuous possession as owner of the said land which is evident from the revenue record proved on record as Ex.PW2/3 showing the possession of Brahm Prakash son of Sh.Bhagwan Dass, the grand father of the plaintiff on khasra no.801-802. The earlier record i.e.Jamabandi 1990-91 also shows that Brahm Prakash was in cultivatory possession, similarly the khasra girdawari for the year 2003 proved as Ex.PW1/2 shows that Sh.Brahm Prakash was in cultivatory possession of khasra no. 801-802. Ld.counsel submitted that the plaintiff and his joint family is governed by Customary Hindu Law. The land in question was purchased out of the compensation received from the ancestral property of the plaintiff by the grand father of the plaintiff and hence this land became ancestral or co-parcernary property. Ld.counsel submitted that the family of the plaintiff is governed by customary law, according to which the ancestral property of the plaintiff can not be alienated or sold out or transferred to any other C. S. No. 235/11 9 Arjun Choudhary Vs. Anil Sharma person without any legal necessity or except for welfare of the family. Ld.counsel submitted that so far as ownership of Brahm Prakash is concerned, PW1 has specifically stated that Brahm Prakash was owner of 7/11 share in khasra no.802 measuring 11 biswas. Even in the jamabandi of 1990-91 Ex.PW1/1 and also in Jamabandi Ex.PW1/2. It is specifically mentioned that Central Government is owner of 4/11 share and Brahm Prakash is owner of 7/11 share. Ld.counsel submitted that as it is a co-parcernery property, therefore, as per the customs the defendant no.3 was not having any right to sell the property except for the legal necessity or for the benefit of the family but the property was not sold either for legal necessity or for the welfare of the family and hence the documents GPA etc.executed by defendant no.3 in favour of defendant no.1 and 2 which are Ex.DW1/A, DW1/B, DW1/C, DW1/D, DW1/E, DW1/F, DW1/G, DW1/H and DW1/I are liable to be declared null and void, illegal and void. Ld.counsel submitted that once defendant no.3 itself admitted that it was a joint family property that the property was purchased from the ancestral property by the grandfather of the property, it becomes ancestral property. Thereafter it was for the defendant no.1 to prove that it was not an ancestral property or that defendant no.3 was having right to sell the same. Ld.counsel in support of his arguments relied upon the judgment cited as Gangadharand Vs. Janardhana Mallan & Others decided by Hon.Supreme Court of India on 10.05.1996, wherein it was held that, "It was well established by the decisions of the Courts in India and the Privy Council that what the alienee is required to establish is legal C. S. No. 235/11 10 Arjun Choudhary Vs. Anil Sharma necessity for the transaction and that it is not necessary fro him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. In this connection, we may refer to two decisions of the Privy Council. On is Sri Krishan Das Vs. Nathu Ram. In that case the consideration for the alienation was Rs.35,000/-. The alience was able to prove that there was legal necessity only to the extent of Rs.3,000/- and not for the balance. The High Court held that the alienation could be set aside upon the plaintiff's paying Rs.3,000/- to the alience. But the Privy Counsel reversed the decision of the High Court observing that the High Court had completely misapprehended the principle of law applicable to a case of this kind. What the alienee has to establish is the necessity for the transaction. If he establishes that then he can not be expected to."
Ld.counsel for plaintiff has also relied upon the judgment cited as Appasaheb Peerappa Chandgade Vs. Devendra Peerappa Chandgade decided by Hon.Supreme Court of India on 19.10.2006, but the issue in dispute in this case was with respect to application under Order 1 Rule 10 CPC and hence not applicable in the facts and circumstances of the present case. Ld.counsel has also relied on a judgment cited as Shalini Sumant Raut & Others Vs. Milind Sumant Raut & Others, decided by Bombay High Court on 14.12.2012 and Makhan C. S. No. 235/11 11 Arjun Choudhary Vs. Anil Sharma Singh (D) By Lrs Vs. Kulwant Singh 2007 INDLAW SC 288, wherein it is held that, "The question to be determined in the present case is as to who is required to prove the nature of property whether it is a joint Hindu Family property or self-acquired property of the first appellant".
Ld.counsel submitted that in view of this fact, it is clear that plaintiff is having right in the property being grandson of Sh.Brahm Prakash and the co-parcerner.
12. Ld.counsel for defendant submitted that the onus was upon the plaintiff to prove and establish this fact that it is an ancestral property but no such evidence has been brought on record. Ld.counsel submitted that the case of the plaintiff is that property in dispute that is khasra no.802 Village Chattarpur, New Delhi was purchased by grandfather of the plaintiff from the amount which he has received as compensation of the land acquired by Government situated at Shakurpur, Delhi. To prove this, the plaintiff has placed on record certain documents but no such evidence has been brought on record that it was purchased from the compensation amount received by the grandfather of the plaintiff, though land acquisition certificate Ex.PW2/4 and award Ex.PW2/7 has been placed on record but no such document has been placed on record to show that the amount received as compensation was used to purchase the land of khasra no.802, Chattarpur, New Delhi. The defendant has specifically denied this fact even no document with respect to the purchase of land has been placed on record. In fact the land under khasra no.801 is C. S. No. 235/11 12 Arjun Choudhary Vs. Anil Sharma owned by Central Government and so far as khasra no.802 is concerned, that is also not fully owned by Sh.Brahm Prakash. Infact he was only having possessary right and not the owner. The onus was upon the plaintiff to prove and establish this fact and also the custom whereby the ancestral property could not be sold which has not been proved and established on record. Ld.counsel submitted that as it is not proved and established that it is an ancestral property, therefore, plaintiff is not having any right in the property.
13. After hearing arguments and going through the record, I found that case of the plaintiff is that suit property was purchased by the grand father of the plaintiff from the compensation amount received from the land acquired by the Government. Nodoubt with respect to the acquisition and also the award i.e. Ex.PW2/4 and PW2/7 has been placed on record even the receipt has been proved on record as PW2/6 but there is no such document placed on record except oral testimony that land of khasra no.802 was purchased from the compensation amount received . Even no document regarding purchase of khasra no.802 Chattarpur Village has been placed on record, as and when it was purchased and from whom it was purchased. No doubt revenue record has been placed on record, showing that Sh.Brahm Prakash was owner of 7/11 share in khasra no.802 measuring 11 biswas but when he purchased it and since when he became the owner has not been brought on record. The onus was heavy on the plaintiff to show that this land was purchased by Sh.Brahm Prakash from the compensation amount. No doubt plaintiff is able to show that he is the grand son of Sh.Brahm Prakash and that it was a joint C. S. No. 235/11 13 Arjun Choudhary Vs. Anil Sharma family but simply by proving and establishing this fact it can not be proved and established that property also became an ancestral property, unless it is shown that the property in possession was purchased from the compensation received of the ancestral property or from the joint family fund. No doubt in the present case it is not the stand of the plaintiff that it was purchased out from the joint family fund and hence it becomes the property of the joint family. His stand is that it was purchased from the compensation amount received out of the acquisition of ancestral land at Village Shakurpur but no such documents has been placed on record. In fact no document regarding purchase of land of khasra no.802 has been placed on record. Keeping in view all these facts, in my opinion, the plaintiff has failed to prove and establish that he has any right, title or interest in the suit property. Issue is decided in favour of the defendant and against the plaintiff.
14. Issue no.2:Whether the plaintiff is entitled for the relief as prayed for?
Ld.counsel for plaintiff submitted that plaintiff is the grand son of Sh.Brahm Prakash. According to the documents placed on record Brahm Prakash is the owner of khasra no.802 to the extent of 7/11 share. After the death of Sh.Brahm Prakash, Sh.Ajay Choudhary, defendant no.3 became the owner as it was an ancestral property, therefore, Ajay Choudhary was not having any right to dispose off the suit property except for legal necessity or for the welfare of the family. Ld.counsel submitted that as per the evidence the value of the property was around Rs.8 lacs but suit property has been sold/disposed off for a meager consideration of Rs.1 lacs. This C. S. No. 235/11 14 Arjun Choudhary Vs. Anil Sharma fact itself shows that it was sold without any legal necessity and only to deprive plaintiff from his legal right in the property. Ld.counsel submitted that as defendant no.3 was not having any legal right that is why he did not appear in the witness box. Ld.counsel submitted that under the circumstances all these documents Ex.DW1/A to Ex.DW1/F are liable to be declared as null and void and cancelled and at the same time plaintiff be put in possession of the suit property.
15. Ld.counsel for defendant submitted that Brahm Prakash was not the owner of the property. He was only in possession of the property as it was a Government land as deposed by PW1. PW1 also stated that Brahm Prakash was not having any right to sell the property as it was owned by Central Government. Ld.counsel submitted that as the right of Brahm Prakash was only possessary, therefore, Ajay Choudhary does not have any right in the property, but Ajay Choudhary being son of Ex-Chief Minister of Delhi he exerted pressure upon the defendant to extort money under which the defendant come. Ld.counsel submitted that so far as the documents are concerned, those are registered documents and valuable consideration has been paid as per the valuation of the property. There is no evidence brought on record that value of the property was more than Rs.8 lacs or the consideration paid is inadequate. Defendant no.3, who is real father of the plaintiff has not appeared in the witness box as the suit has been filed by the plaintiff in collusion with defendant no.3. Defendant no.3 in his written statement has no where stated or admitted that the property was not sold for legal necessity or was not sold for the welfare of the family. Even otherwise as plaintiff is C. S. No. 235/11 15 Arjun Choudhary Vs. Anil Sharma not having any right in the property as it is not establish that it was an ancestral property and it is also not establish their family was covered by any custom, wherein ancestral property can not be sold, therefore, no relief can be granted to the plaintiff.
16. After hearing the arguments and going through the record, I found that in view of the decision of the issue no.1, it is clear that plaintiff has failed to show that the suit property i.e.property of khasra no. 802 was ancestral property. It was also for the plaintiff to show that their family is governed by any custom. But no such evidence has been brought on record in this regard. Defendant no.3, who is father of the plaintiff has also mentioned in the written statement that it is for the plaintiff to prove and establish that they are governed by this custom. Even otherwise, under law it is required that custom be proved as any other fact which has not been proved by the plaintiff. Under the circumstances when it is not established that the property is ancestral property or that the family of the plaintiff was governed by any custom. The plaintiff is not entitled to any relief. Further it was for the plaintiff to show that the suit property was not disposed off for any legal necessity or for the welfare of the family, but no such evidence has been brought on record. Ld.counsel for plaintiff contended that inadequacy of the consideration for which the property has been sold clearly shows that it was sold illegally and not for legal necessity or welfare of the family. If the defendant no.3 had considered the welfare he must have taken the adequate consideration. Rather, he wanted to throw away the property only to deprive plaintiff of his right. But no such evidence has been brought on record that the value of the property in the area at the C. S. No. 235/11 16 Arjun Choudhary Vs. Anil Sharma relevant time was more than the one which defendant no.3 has received from defendant no.1 and 2. It was for plaintiff to show that consideration paid/received was inadequate but no such evidence in the form of value in the area of the property of the relevant time has been brought on record. Keeping in view this discussion, in my opinion plaintiff has failed to prove and establish and also discharge the onus upon him. The issue is accordingly decided against the plaintiff.
17. Relief In view of the forgoing discussions, the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to R/R. Announced in open court on 17.08.2013.
VIRENDER KUMAR BANSAL ADDL.DISTRICT JUDGE-08 CENTRAL, DELHI C. S. No. 235/11 17 Arjun Choudhary Vs. Anil Sharma 17.08.13 present: None.
Vide spearate judgment announced in open court, the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to R/R. VIRENDER KUMAR BANSAL ADDL.DISTRICT JUDGE-08 CENTRAL, DELHI C. S. No. 235/11 18