Delhi District Court
Shri Brij Mohan vs Shri Ishwar Prasad on 24 September, 2022
IN THE COURT OF SUMIT DASS, ADDITIONAL DISTRICT
JUDGE04, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI.
CNR No.DLSW010041532016
CS No.517208 of 2016
In the matter of:
Shri Brij Mohan
S/o Shri Ram Niwas,
R/o WZ394/A, Gali No.16,
Sadh Nagar, Palam Colony,
New Delhi110045. .......Plaintiff.
VERSUS
1.Shri Ishwar Prasad
S/o Shri Ram Niwas
R/o E47, Gali No.17,
Sadh Nagar, Palam Colony,
New Delhi110045.
2.Shri Ram Niwas (deceased)
through LRs:
2A.Smt. Shakuntla Sharma
W/o late Baij Nath Sharma,
r/o BS2012, Shalimar Bagh,
New Delhi.
CS Nos. 517208/16 & 15440/16 Page No. 1/41
2B.Smt. Sharda Sharma
W/o Shri Pyare Lal Sharma
R/o WZ931, Gali No.9,
Sadh Nagar, Palam Colony,
New Delhi110045.
2C.Smt. Saroj Sharma
W/o Shri Trilok Chand Sharma
R/o C165, Hari Nagar, Clock Tower,
New Delhi110064.
2D.Shri Laxmi Narayan Sharma
R/o WZ1088, Gali No.11,
Sadh Nagar1, Palam Colony,
New Delhi110045. ......Defendants.
AND
CNR No.DLSW010003092016
CS No.15440 of 2016
In the matter of:
1.Shri Ishwar Prasad
S/o Shri Ram Niwas
R/o E47, Gali No.17A,
Sadh Nagar, Palam Colony,
New Delhi110045. .......Plaintiff.
VERSUS
1.Shri Ram Niwas (deceased)
through LRs:
CS Nos. 517208/16 & 15440/16 Page No. 2/41
1a.Smt. Shakuntla Sharma
D/o late Ram Niwas
r/o BS212, Shalimar Bagh,
Delhi88.
1b.Smt. Sharda Sharma
D/o late Ram Niwas
R/o WZ931/C/2, Gali No.14A/3,
Sadh Nagar, Palam Colony,
New Delhi110045.
1c.Smt. Saroj Sharma
D/o late Ram Niwas
R/o C165, 2nd Floor, Hari Nagar,
New Delhi110064.
1d.Shri Laxmi Narayan Sharma
R/o WZ1088, Gali No.11,
Sadh Nagar1, Palam Colony,
New Delhi110045.
2.Shri Brij Mohan
S/o Shri Ram Niwas,
R/o E61/WZ394/A, Gali No.16,
Sadh Nagar, Palam Colony,
New Delhi110045. ......Defendants.
Date of Filing Suit No.517208/2016 : 22.12.2014
Date of Filing Suit No.15440/2016 : 29.05.2015
Date of Arguments : 12.09.2022.
Date of Decision : 24.09.2022
JUDGMENT
1. Vide this common judgment, I shall dispose of both the captioned suits i.e. CS No.517208/2018 titled as "Brij Mohan v. Ishwar Prasad & Anr."
CS Nos. 517208/16 & 15440/16 Page No. 3/41and CS No.15440/2016 titled as "Ishwar Prasad vs. Ram Niwas & Anr."
2. Initially both the suits were filed before Hon'ble High Court, however, in terms of Notification No.27187/DHC/Orgl. Dated 24.11.2015, the same were transferred to District Courts, South West District, Dwarka Courts, New Delhi.
3. It is relevant to note herein that parties in both the cases are family members and main contesting parties are Brij Mohan and Ishwar Prasad who are brothers. During pendency of the trial defendant Sh. Ram Niwas, who is father of plaintiffs in both cases, had died and was substituted through legal heirs. I again note this fact that the suits were filed while he was alive and he had also filed his Written Statement.
4. It is also relevant to note herein that vide order dated 08.09.2016 the then Ld. Presiding Officer had directed that evidence would be led in the suit titled as Brij Mohan v. Ishwar Prasad & Anr and the same shall be read in second case titled as Ishwar Prasad v. Ram Niwas & Anr. Hence, the case of Brij Mohan v. Ishwar Prasad & Anr becomes the lead case.
Facts of the lead case:
5. Suit bearing CS No.517208/2016 has been filed by plaintiff Sh. Brij Mohan against defendant Sh. Ishwar Prasad [his brother] and Sh. Ram Niwas [his father] who as mentioned above had died during pendency of CS Nos. 517208/16 & 15440/16 Page No. 4/41 the trial and substituted by other legal heirs. Said suit has been filed by plaintiff Brij Mohan seeking preliminary decree for partition in respect of suit property measuring 200 sq yards, part of Khasra No.95/21, bearing municipal No.E47, Sadh Nagar, Gali No.17, Palam Colony, New Delhi as well as damages @ Rs.10,000/ per month against defendant no.1 for unauthorised use and occupation of his share in the suit property.
5.1 Elaborating the facts of case bearing CS No.517208/2016 in detail are that vide registered Sale Deed dated 16.07.1971, Sh. Ishwar Dayal Mudgal had purchased a piece of land measuring 200 sq yards out of total area of 500 sq yards of Khasra No.95/21 situated at Basti Sadh Nagar in the area of Village Palam Colony, Delhi from Shri Hari Singh son of Shri Karam Singh. Vide Agreement to Sell dated 05.04.1982, Shri Ishwar Dayal Mudgal had agreed to sell aforesaid property to defendant no.1 and the plaintiff for a sum of Rs.20,000/ which has been paid against receipt to the seller. At the same time on 05.04.1982, Shri Ishwar Dayal Mudgal had also executed an irrevocable General Power of Attorney dated 05.04.1982 thereby appointed defendant No.2 Shri Ram Niwas who is father of the plaintiff and defendant no.1 as his General Attorney for execution of the necessary sale documents in favour of the plaintiff and defendant no.1.
5.2 It is further stated that as per Agreement to Sell and Receipt dated 05.04.1982, the possession of the aforesaid property had been delivered to CS Nos. 517208/16 & 15440/16 Page No. 5/41 defendant no.2 who raised the construction upto Ground Floor only and allowed defendant no.1 to reside in the said property being his son. Now defendant No.1 and plaintiff are coowners in equal share of the said property which now bears municipal No.E47, Sadh Nagar, Gali No.17, Palam Colony, New Delhi110045.
5.3 It is further averred that since there was only an Agreement to Sell in favour of defendant no.1 and plaintiff, accordingly on request of the plaintiff, Shri Ram Niwas [defendant no.2] had executed a Gift Deed on 09.10.2014 in favour of the plaintiff in respect of his half share i.e. 100 sq yards out of 200 sq yards, however, the entire property is still stated to be jointly owned by the plaintiff and defendant no.1 and has not been partitioned.
5.4 It is also stated that after execution of the Gift Deed, the plaintiff had requested the defendant no.1 to partition the aforesaid suit property by metes and bounds but the defendant no.1 has been avoiding the same on one pretext or the other and ultimately the defendant no.1 refused to partition the suit property. The plaintiff had asked the defendant no.1 to vacate and handover the possession of his half share in the suit property but defendant no.1 refused to partition the suit property and as such, the plaintiff had issued legal notice dated 24.11.2014 to the defendant no.1 to partition the suit property, which defendant no.1 refused to accept. Hence, the plaintiff has filed the present suit seeking preliminary decree for CS Nos. 517208/16 & 15440/16 Page No. 6/41 partition in respect of suit property as well as damages @ Rs.10,000/ per month against defendant no.1 for unauthorised use and occupation of the share of the plaintiff in the suit property.
6. Summons for settlement of issues were directed upon the defendants.
Both the defendant no.1 and 2 had entered appearance and filed their respective Written Statement. However, during pendency of the trial, defendant no.2 expired and his legal heirs were impleaded as defendants in the present case.
7. Defendant No.1 in his Written Statement has raised the preliminary objections that plaintiff and the defendant no.2 have connived to file the present suit to deprive him from his ancestral and self earned suit property, which fraudulently and illegally purchased by the defendant no.2 in the name of the plaintiff as joint purchaser from the money provided by the defendant no.1.
7.1 It is further stated that defendant no.2 had represented the defendant no.1 that one Shri Ishwar Dayal Mudgal had agreed to sell the suit property to the defendant no.2. The defendant no.2 asked the defendant no.1 to provide money for the purchase of the suit property with promise that the same shall be held solely by him in his own name as a trustee for the benefit of the children of the defendant no.1. After purchase of the suit property, the defendant no.2 informed to defendant no.1 that he has CS Nos. 517208/16 & 15440/16 Page No. 7/41 purchased the suit property in his own name only and on 05.03.2003 the defendant no.2 once again reaffirmed himself as the sole owner of the suit property and made a registered Will dated 05.03.2003 in respect of the suit property bequeathing 50% of undivided shares each in the suit property to both the children of the defendant no.1 to show his bonafide.
7.2 It is further averred that when suit property was purchased, the defendant no.1 was working as a Manager with Rolli Books International and was earning handsome amount as salary, whereas plaintiff was completely dependent upon the defendants for his financial needs. Upon receipt of legal notice dated 24.11.2014 from the plaintiff, the defendant no.1 for the first time asked from the defendant no.2 for papers of the suit property and only thereafter the defendant no.1 came to know that surreptitiously, fraudulently and without any express consent of the defendant no.1, the plaintiff has been illegally named as joint purchaser of the suit property along with defendant no.1. The defendant no.1 stated himself to be the sole owner and in possession of the suit property and stated that the plaintiff has no right or individual interest in the suit property.
7.3 It is also averred that plaintiff and defendant no.2 have acted in connivance against defendant no.1. It is also stated that plaintiff and defendant no.2 in active connivance have sold the entire ancestral property without any consent of the defendant no.1 which includes agricultural land at Village Pali, Distt. Mahendragarh, Haryana, a single CS Nos. 517208/16 & 15440/16 Page No. 8/41 storey house at the same village. The defendant no.2 as Karta of the Hindu Undivided Family also purchased property at WZ1013, Gali No.13, Sadh Nagar, Palam Colony, New Delhi (a shop) and used it for the benefit of plaintiff only excluding defendant no.1 and his children. Further, a house at E61, Gali No.16, Sadh Nagar, Palam Colony, New Delhi has also been purchased out of the proceeds from the ancestral property including aforsaid property No.WZ1013, Gali No.13, Sadh Nagar, Palam Colony, New Delhi which was sold on 26.06.1998 and the aforesaid house was purchased by using the proceed thereof on 01.07.1998.
7.4 It is also stated by defendant no.1 that registered gift deed dated 09.10.2014 produced and relied upon by the plaintiff is a fabricated and false document which has been made and registered on the basis of unregistered and expired GPA dated 05.04.1982 of late Sh. Ishwar Dayal Mudgal long after his demise, by the defendant no.2 in connivance with plaintiff.
7.5 In his parawise reply on merits, the defendant no.1 has denied the averments made in the plaint which are contrary to his version and reiterated his version made in preliminary objection. Defendant no.1 denied the version of the plaintiff and sought dismissal of the suit.
8. Replication was filed to the Written Statement filed on behalf of the CS Nos. 517208/16 & 15440/16 Page No. 9/41 defendant no.1. Contrary averments were denied as false and incorrect and the stand pleaded in the plaint was reiterated and reaffirmed as correct.
9. Defendant no.2 has also filed Written Statement. He stated that the entire sale consideration amount for purchasing the suit property was paid by him and the suit property was constructed by him from his own funds and he residing in the suit property since the year 1984 along with plaintiff and in the year 19901991, defendant no.1 also came to the suit property and started residing with the defendant no.2. Thereafter, plaintiff had constructed his own house bearing No.WZ394/A, Gali No.16, Sadh Nagar, Palam Colony, New Delhi in the year 19941995 and shifted with his family members from the suit property. Defendant no.2 further submits that though plaintiff had shifted from the suit property but his half share in the suit property was secured through defendant no.2 and defendant no.1 had also assured plaintiff in this regard that he will restore back possession of half portion as and when the plaintiff will demand the same.
9.1 It is further stated by defendant no.2 that defendant no.1 had got executed a registered Will dated 05.03.2003 fraudulently in favour of his two sons Mr. Vikas Sharma and Mr. Kapil Sharma in respect of the entire suit property and the defendant no.2 got cancelled the said Will on 11.09.2014. The defendant no.2 has supported the version of the CS Nos. 517208/16 & 15440/16 Page No. 10/41 defendant no.1.
10. On the basis of material available on record and the pleadings of the parties, vide order dated 08.09.2016, Ld. Predecessor had framed following Issues:
(1)Whether the suit property bearing No.E47, Sadh Nagar, Gali No.17, Palam Colony, New Delhi had been purchased by the defendant no.2 from the funds provided by defendant No.1 alone for the benefit of the two children of defendant No.1, as claimed by defendant No.1?OPD1 (2)Whether the Agreement to Sell dated 05.04.1982 executed by Sh.
Ishwar Dayal in favour of plaintiff and defendant No.1 jointly and the General Power of Attorney dated 05.04.1982 executed by Sh. Ishwar Dayal in favour of Sh. Ram Niwas (defendant No.2) are manipulated and invalid documents as claimed by defendant No.1? OPD1 (3)Whether the plaintiff and defendant No.1 have equal rights in the suit property and whether the same liable to be partitioned between them in equal shares as prayed by the plaintiff?OPP (4)Whether the plaintiff is entitled to any damages as claimed by him and if so at what rate and for what period?OPP (5)Relief.
CS Nos. 517208/16 & 15440/16 Page No. 11/4111. Another suit bearing CS No.15440/2016 has been filed by plaintiff Sh.
Ishwar Prasad against defendant No.1 Sh. Ram Niwas [his father] and defendant no.2 Sh. Brij Mohan [his brother] seeking decree of declaration to declare Gift Deed dated 09.10.2014, Agreement to Sell dated 05.04.1982, General Power of Attorney dated 05.04.1982 and undated Receipt in respect of suit property as in the hands of the defendants as illegal, nonest & void documents. He also sought decree of permanent and mandatory injunction in respect of suit property i.e. not to disturb plaintiff's exclusive possession in the property coupled with the fact to handover all the original documents as provided by late Sh.Ishwar Dayal Mudgal without any demur and protest to the plaintiff.
11.1 The facts of the case bearing CS No.15440/2016 filed by plaintiff Ishwar Prasad are that suit property bearing No.E47, Sadh Nagar, Gali No.17, Palam Colony, New Delhi was fraudulently and illegally purchased by the defendant no.1 with the name of defendant no.2 as joint purchaser along with plaintiff from the money provided by plaintiff. It is further stated that defendant no.2 claimed 50% share in the suit property alleging to be joint owner on the strength of Gift Deed dated 09.10.2014 which was executed by defendant no.1 on the basis of an unregistered General Power of Attorney dated 05.04.1982 executed by original owner Sh. Ishwar Dayal Mudgal of the suit property in favour of defendant no.1. Said Shri Ishwar Dayal Mudgal stated to have died in the year 1991.
CS Nos. 517208/16 & 15440/16 Page No. 12/4111.2 It is further averred in the plaint that defendant no.1 had asked the plaintiff to provide money for the purchase of the suit property from one Shri Ishwar Dayal Mudgal and had promised that the same shall be held solely in his own name as a trustee for the benefit of children of the plaintiff and accordingly, the suit property was purchased. On 05.03.2003, the defendant no.1 once again reaffirmed himself as the sole owner of the said property and made a registered Will dated 05.03.2003 in respect of said property bequeathing 50% of undivided shares each in the said property to both the children of the plaintiff to show his bonafide.
11.3 It is further averred that when suit property was purchased, the plaintiff was working as a Manager with Rolli Books International and was earning handsome amount as salary, whereas defendant no.2 was completely dependent upon the plaintiff and defendant no.1 for his financial needs. Upon receipt of legal notice dated 24.11.2014 from the defendant no.2, the plaintiff for the first time asked from the defendant no.1 for papers of the suit property and only thereafter the plaintiff came to know that surreptitiously, fraudulently and without any express consent of the plaintiff, the defendant no.2 has been illegally named as joint purchaser of the suit property along with plaintiff. The plaintiff stated himself to be the sole owner and in possession of the suit property and stated that the defendant no.2 has no right or partible interest in the suit property.
CS Nos. 517208/16 & 15440/16 Page No. 13/4111.4 It is also averred that defendant no.1 and defendant no.2 have acted in connivance against the plaintiff. It is also stated that defendants in active connivance have sold the entire ancestral property without any consent of the plaintiff which includes agricultural land at Village Pali, Distt. Mahendragarh, Haryana, a single storey house at the same village. The defendant no.1 as Karta of the Hindu Undivided Family also purchased property at WZ1013, Gali No.13, Sadh Nagar, Palam Colony, New Delhi (a shop) and used it for the benefit of defendant no.2 only excluding plaintiff and his children. Further, a house at E61, Gali No.16, Sadh Nagar, Palam Colony, New Delhi has also been purchased out of the proceeds from the ancestral property including aforesaid property No.WZ1013, Gali No.13, Sadh Nagar, Palam Colony, New Delhi which was sold on 26.06.1998 and the aforesaid house was purchased by using the proceed thereof on 01.07.1998.
11.5 It is also stated by plaintiff that registered gift deed dated 09.10.2014 produced and relied upon by the defendant no.2 is a fabricated and false document which has been made and registered on the basis of unregistered and expired GPA dated 05.04.1982 of late Sh. Ishwar Dayal Mudgal long after his demise, by the defendants in connivance with each other.
11.6 It is also stated that defendant no.2 in collusion with defendant no.1 filed a suit for partition etc claiming the suit property against the plaintiff and CS Nos. 517208/16 & 15440/16 Page No. 14/41 that only after receiving summons and copy of the said suit, the plaintiff for the first time had a glimpse of a copy of alleged Agreement to Sell dated 05.04.1982, Gift Deed dated 09.10.2014, GPA dated 05.04.1982, undated receipt and Sale Deed dated 16.07.1971. The plaintiff called upon the defendant no.1 to cancel the Gift Deed dated 09.10.2014 vide legal notice dated 13.03.2015 but in vain. Hence, the present suit has been filed by the plaintiff against the defendants.
12. Defendant No.1 has filed Written Statement wherein he stated that the suit is without any cause of action and is liable to be rejected being barred by law of limitation and Benami Transaction Act. He stated that he had purchased the suit property from Shri Ishwar Dayal Mudgal on 05.04.1982. He further stated that the suit is not maintainable as, without seeking relief of declaration of his title or ownership, the plaintiff is seeking relief to declare Gift Deed, GPA, Agreement to Sell, Receipt etc as null and void. He further stated that a land was purchased by him from his own funds in the joint name of plaintiff and defendant no.2 and raised construction upon the same in the year 1984 and plaintiff had shifted in the suit property only in the year 199091. He further stated that plaintiff got executed a registered Will dated 05.03.2003 from him fraudulently in favour of his two sons in respect of entire suit property and the said Will was got cancelled by him on11.09.2014. He has denied the version of the plaintiff in toto and sought dismissal of the suit.
CS Nos. 517208/16 & 15440/16 Page No. 15/4113. Replication was filed to the Written Statement filed on behalf of the defendant no.1. Contrary averments were denied as false and incorrect and the stand pleaded in the plaint was reiterated and reaffirmed as correct.
14. Defendant no.2 Sh. Brij Mohan has also filed Written Statement. He stated that the suit is not maintainable as the plaintiff is seeking relief of declaration of alleged documents as illegal and void, without seeking relief of declaration of his title or ownership in respect of the suit property. It is also stated that the suit is without any cause of action in favour of the plaintiff as the suit property was purchased by defendant no.1 on 05.04.1982 which is very well within the knowledge of the plaintiff from the date of purchase, hence, suit is liable to be rejected U/o 7 Rule 11 CPC being barred by limitation. Defendant no.2 further stated that the suit property was purchased by the defendant no.1 from his own funds in the joint name of plaintiff and defendant no.2. He also stated that plaintiff got executed a registered Will dated 05.03.2003 from defendant no.1 fraudulently in favour of his two sons in respect of entire suit property and the said Will was got cancelled by defendant no.1 on 11.09.2014. He filed his Written Statement on the lines of the suit filed by him being CS No.517208/2016 against plaintiff herein. He denied the version of the plaintiff in toto and sought dismissal of the suit.
15. Plaintiff has filed replication to the Written Statement filed on behalf of CS Nos. 517208/16 & 15440/16 Page No. 16/41 the defendant no.2. Contrary averments were denied as false and incorrect and the stand pleaded in the plaint was reiterated and reaffirmed as correct.
16. On the basis of material available on record and the pleadings of the parties, vide order dated 08.09.2016, Ld. Predecessor had framed following Issues:
(1)Whether the Agreement to Sell dated 5.4.1982 executed by Sh.
Ishwar Dayal in favour of plaintiff and defendant No.2 jointly and the General Power of Attorney of the same date executed by Sh. Ishwar Dayal in favour of Sh. Ram Niwas (defendant No.1) are liable to be declared null and void as prayed by the plaintiff?OPP (2)Whether the registered gift deed dated 09.10.2014 executed by defendant No.1 in favour of defendant No.2 is liable to be declared null and void as claimed by the plaintiff?OPP (3)Whether the plaintiff is entitled to decree of permanent injunction as prayed for?OPP (4)Whether the plaintiff is entitled to decree of mandatory injunction as prayed for?OPP (5)Relief.
17. Plaintiff Brij Mohan entered into witness box as PW1. He tendered his evidence by way of affidavit Ex.PW1/A. He relied upon following CS Nos. 517208/16 & 15440/16 Page No. 17/41 documents:
(1)Site plan as Ex.P1, (2)Original Sale Deed dated 16.07.1971 as Ex.P2, (3)Original Agreement to Sell dated 05.04.1982 as Ex.P3, (4)Original Power of Attorney as Ex.P4, (5)Original Receipt as Ex.P5, (6)Original Gift Deed as Ex.P6, (7)Copy of legal notice dated 24.11.2014 along with postal receipt and returned envelope as Ex.PW1/1 (Colly), He was crossexamined at length and discharged.
18. PW2 Sh. Laxmi Narain tendered his evidence by way of affidavit Ex.PW2/A. He is soninlaw of defendant no.2. He deposed that defendant no.2 had purchased the land in the joint name of plaintiff and defendant no.1 and upon which also had constructed from his own funds. He was crossexamined and discharged.
Thereafter, plaintiff's evidence was closed.
19. Defendant No.1 Sh. Ishwar Prasad entered into witness box as DW1. He tendered his evidence by way of affidavit Ex.DW1/A. He relied upon following documents:
(1)Copy of registered Will as Ex.DW1/D2, (2)Copies of property tax receipt issued by MCD are Ex.D2, (3)Electricity Bill dated 07.09.2014 as Ex.DW1/1, CS Nos. 517208/16 & 15440/16 Page No. 18/41 (4)His visiting card as Ex.DW1/2, (5)Letters from Director Citizen Registration/Director Census Operations, Delhi to his family as Ex.DW1/3 (Colly), (6)Construction records maintained by him as Ex.DW1/4 (colly), He was crossexamined by Ld counsel for the plaintiff and discharged.
20. DW2 Sh. Vikas Sharma, who is son of plaintiff, tendered his evidence by way of affidavit Ex.DW2/A. He relied upon photocopies of electricity bill dated 07.09.2014 and water bill dated 25.03.2014 as Ex.DW2/1 and Ex.DW2/2 respectively. He was crossexamined by Ld counsel for the plaintiff and discharged.
21. DW3 Sh. Mahavir Prasad tendered his evidence by way of affidavit Ex.DW3/A. He is younger brother of deceased defendant no.2 Sh. Ram Niwas and deposed to support the version of the defendant no.1. He was crossexamined by Ld counsel for the plaintiff and discharged.
22. DW4 Sh. Rattan Kumar Sharma tendered his evidence by way of affidavit Ex.DW4/A. He also deposed in support of the version of the defendant no.1. He was crossexamined by Ld counsel for the plaintiff and discharged.
23. DW5 Sh. Rakesh, UDC from Assessor & Collector Department was summoned. He deposed that the mutation record in respect of suit property could not be traced out. His examinationinchief was deferred CS Nos. 517208/16 & 15440/16 Page No. 19/41 and he was given house tax receipts Ex.D2 and Ex.D3 for verification. Said witness thereafter did not turn up.
24. DW6 Sh. Prem Kishore from Sub Registrar IX Kapashera had brought summoned record i.e. copy of undertaking dated 07.10.2014 with Form A in respect of execution of Gift Deed by Sh. Ram Niwas in favour of Sh. Birj Mohan in respect of suit property. Copy of the same was exhibited as Ex.DW6/A and Ex.DW6/B respectively. He was discharged after giving due opportunity for crossexamination.
25. DW7 Sh. Rattan Singh, Patwari had brought summoned record of Jama Bandi. He proved Jamabandi for the year 20132014 in respect of Khewat No.946, Khatoni No.1177, Mustil No.4, Kila No.23, Rakba8 Kanal at Mustil No.11, Kila 2/2, Rakba 3 Kanal and 16 marlah and Kila No.3 Rakba 8 Kanal, Kitte 3 total land measuring 19 Kanal and 16 Marlah situated at Village Paali Distt. Mahendergarh, Haryana as Ex.DW7/A. Jamabandi for the year 20032004 and for the year 20082009 of the above mentioned land were proved as Ex.DW7/B and Ex.DW7/C respectively. He had also brought mutation register for the said property dated 08.02.2016 vide mutation No.6343 and filed copy of the relevant page as Ex.DW7/D. He was discharged after giving due opportunity for crossexamination.
Thereafter, defence evidence was closed.
26. I have heard the arguments advanced by Sh.T.C. Sharma, Adv on behalf CS Nos. 517208/16 & 15440/16 Page No. 20/41 of Brij Mohan and Sh. R.R. Kumar, Adv on behalf of Ishwar Prasad, written arguments have also been filed and the same have been duly perused.
27. Since common evidence was led in both the cases, I am compiling both sets of issues at one place.
28. Issues settled in CS No.517208/2018 titled as "Brij Mohan v. Ishwar Prasad & Anr" are as under:
(1)Whether the suit property bearing No.E47, Sadh Nagar, Gali No.17, Palam Colony, New Delhi had been purchased by the defendant no.2 from the funds provided by defendant No.1 alone for the benefit of the two children of defendant No.1, as claimed by defendant No.1?OPD1 (2)Whether the Agreement to Sell dated 05.04.1982 executed by Sh.
Ishwar Dayal in favour of plaintiff and defendant No.1 jointly and the General Power of Attorney dated 05.04.1982 executed by Sh. Ishwar Dayal in favour of Sh. Ram Niwas (defendant No.2) are manipulated and invalid documents as claimed by defendant No.1? OPD1 (3)Whether the plaintiff and defendant No.1 have equal rights in the suit property and whether the same liable to be partitioned between them in equal shares as prayed by the plaintiff?OPP CS Nos. 517208/16 & 15440/16 Page No. 21/41 (4)Whether the plaintiff is entitled to any damages as claimed by him and if so at what rate and for what period?OPP (5)Relief.
29. Issues settled in CS No.15440/2016 titled as "Ishwar Prasad vs. Ram Niwas & Anr." are as under:
(1)Whether the Agreement to Sell dated 5.4.1982 executed by Sh.
Ishwar Dayal in favour of plaintiff and defendant No.2 jointly and the General Power of Attorney of the same date executed by Sh. Ishwar Dayal in favour of Sh. Ram Niwas (defendant No.1) are liable to be declared null and void as prayed by the plaintiff?OPP (2)Whether the registered gift deed dated 09.10.2014 executed by defendant No.1 in favour of defendant No.2 is liable to be declared null and void as claimed by the plaintiff?OPP (3)Whether the plaintiff is entitled to decree of permanent injunction as prayed for?OPP (4)Whether the plaintiff is entitled to decree of mandatory injunction as prayed for?OPP (5)Relief.
30. I intend to take issues which are settled in the main suit first i.e. CS No.517208/2018 titled as "Brij Mohan v. Ishwar Prasad & Anr" and obviously to a large extent outcome of the said issues shall determine the CS Nos. 517208/16 & 15440/16 Page No. 22/41 outcome of second suit CS No.15440/2016 titled as "Ishwar Prasad vs. Ram Niwas & Anr." as well.
31. My issuewise findings are as under:
Issue No.(1)Whether the suit property bearing No.E47, Sadh Nagar, Gali No.17, Palam Colony, New Delhi had been purchased by the defendant no.2 from the funds provided by defendant No.1 alone for the benefit of the two children of defendant No.1, as claimed by defendant No.1?OPD1 31.1 This issue was framed taking into account the objection/plea of the defendant no.1 that the suit property was purchased by defendant no.2 Sh.
Ram Niwas, who is father of the parties from the funds provided by defendant no.1 Sh. Ishwar Prasad primarily for the benefit and use of his own and his sons Mr. Vikas Sharma and Mr. Kapil Sharma. Obviously there is a Will which has been relied upon by the defendant no.1 Sh. Ishwar Prasad and the said Will is a registered Will. Necessarily at that point of time the litigation clouds were not in horizon. I intend to just have a look at the said Will at the very inception. The relevant portion of the said registered Will is quoted as under: This is the Will and testament of Shri Ram Niwas son of Late Sh.Kundan Lal, Aged about 80 Years, Resident of E47, Gali No.17A, Sadh Nagar, Palam Colony, New Delhi110045.
........
CS Nos. 517208/16 & 15440/16 Page No. 23/41My all the above named Sons and Daughters have been married by me at my own cost and expenses. I have given already all the due shares to my Daughters and they are well settled at their homes and further their Teej & Teonhar and their customary usages will be performed by my Two Sons after my death.
My Younger Son Sh. Brij Mohan Sharma along with his family is living separately in his selfpurchased House No.E61, Gali No.16, Sadh Nagar, Palam Colony, New Delhi45, which has been purchased by him at his own.
I am living in House No.E47, Sadh Nagar, Gali No.17A and maintaining myself at my own and cooking my meals separately even I am not living with my Elder Son Sh. Ishwar Parshad Sharma who is also living in the same house.
My Elder Son Sh. Ishwar Prasad Sharma is living separately with his family in House No.E47. His relations with me are not cordial since long and he has not been proved to be an obedient & faithful to me. Due to his abnormal habits I have always been aggrieved upon him. However his Two Sons namely 1) Vikas Sharma & Kapil Sharma both Sons of Ishwar Prasad Sharma have been serving me upto my entire satisfaction, hence, in turn thereof I am pleased to make my these Two Grand Sons as the only beneficiaries of this Will as under: That I am the sole and absolute owner and in possession of a property of House No.E47, built on the land measuring 200 Sq. Yds, out of Khasra No.95/21, situated in the area of Village, Palam, Delhi and Abadi CS Nos. 517208/16 & 15440/16 Page No. 24/41 of Sadh Nagar, Palam Colony, New Delhi45, which is comprising of 4 Rooms, 2 Kitchens, One Store and Latrine/Bath room with Stair Cases at G/Floor and One Latrine on the F/Floor, is bounded as under: East: Road West: Gali North: Others property South: Others property I, hereby devise and bequeath that so long I am alive I will remain sole and absolute owner of above mentioned property and after my death my above said property No.E47 shall go and devolve upon my Two Grand Sons 1)Mr. Vikas Sharma & 2) Mr. Kapil Sharma. Both Sons of Shri Ishwar Prasad Sharma, being both are major in their ages, with equal share of 1/2 undivided shares each in the above mentioned entire property. Who both after my death shall be the sole & absolute owner of the above said property and they will have all the rights & powers to sell, transfer, mortgage, gift or alienate the same in whatsoever manner and to whomsoever he/they may like or desire so.
My no other legal heirs, sons or Daughters shall have any right, title or any claim or share in their above mentioned property. Objection if any, may be raised by anyone else regarding my this Will their such objection be treated as cancelled & null & void.
It is imperative to mention here that since my Son Brij Mohan Sharma is living separately in his selfacquired property and my son Ishwar Prasad Sharma is self dependent, both of them has been left with no right or title CS Nos. 517208/16 & 15440/16 Page No. 25/41 in their above said property. However, Sh. Ishwar Prasad Sharma and his wife may live, use and enjoy in my above said property No.E47 but none of my above named Two Sons have any rights to interfere in this Will and over my above mentioned property.
31.2 It is relevant to note herein that in the entire Will there is no reference to the effect that the property in question was purchased from the funds given by Sh. Ishwar Prasad for the benefit of his sons Sh. Vikas Sharma and Sh. Kapil Sharma - the case which is now being agitated by the defendant no.1. Infact reason which has been assigned by Sh. Ram Niwas [father of the party] to give property to his grandsons is that his relations with Sh. Ishwar Prasad i.e. defendant no.1 were not cordial. I am harping on the point that this plea that funds were provided by Sh. Ishwar Prasad were not acknowledged by Sh. Ram Niwas at the time of execution of the Will. Rather he had excluded or changed the natural line of inheritance and intended to bequeath the property to the sons of defendant no.1.
31.3 Secondly the execution of the said Will and reliance upon said Will by defendant no.1 atleast probablize the case that Sh. Ram Niwas, the father of the parties had an ownership interest in the property or any sort of interest which could have been bequeathed by way of a Will. Otherwise there was no purpose for execution of the said Will. To put it pithily it is not merely that he was an agent for the purpose of giving Conveyance Deed in favour of his sons inasmuch as Agreement to Sell was executed in favour of both parties i.e. Brij Mohan and Ishwar Prasad jointly. The CS Nos. 517208/16 & 15440/16 Page No. 26/41 fact that he had executed a Will on the basis of the documents of purchase to a very large extent demolishes the case of defendant no.1 that the property was purchased by his own funds or funds provided by him.
31.4 Dehors aforesaid, excluding the said reasoning i.e. eschewing the said Will all together there is no independent evidence which has been led by the defendant no.1 to support his claim that any money was given by him to the defendant no.2 through any banking channel or through any other mode whereby this fact could be deduced that the actual contributory was the defendant no.1 and the defendant no.2 was only acting upon his instructions. Merely by producing certain receipts which are of construction in handwriting of Sh. Ram Niwas their father is not sufficient to discharge burden of this issue neither it probablize that defendant no.1 Sh. Ishwar Prasad had purchased the suit property for his own benefit/same was got purchased by his funds which he had given to Sh. Ram Niwas.
31.5 There are two witnesses who have been examined by the defendant no.1 i.e. DW3 Sh. Mahabir Prasad who is younger brother of late Sh. Ram Niwas and DW4 Sh. Rattan Kumar Sharma who is son of Sh. Ram Kumar real brother of late Sh.Ram Niwas. Both these witnesses have deposed that Sh. Ishwar Prasad had contributed from his earning as his father was a "Munim" in a private shop. However, except said self serving averments nothing has been pointed out that any amount was actually given by Sh.
CS Nos. 517208/16 & 15440/16 Page No. 27/41Ishwar Prasad to defendant no.2 Sh. Ram Niwas for acquisition of the property and that money was given to ensure that the suit property is his own or was exclusively for the benefit of his sons namely Sh. Vikas Sharma and Sh. Kapil Sharma.
31.6 Delving upon crossexamination of DW3 Sh. Mahabir Prasad, witness was asked as to when suit property was purchased and he deposed that it was purchased in the year 19821983. He was not aware as at what price the suit property was purchased. He stated that he was not required to see the document of property as nobody shows his property documents to others. As such there is no iota of evidence that any money was contributed by defendant no.1 Sh. Ishwar Prasad towards purchase of the plot or otherwise towards construction thereof.
31.7 Coming to the testimony of DW4 Sh. Rattan Kumar Sharma, his testimony is bereft of any evidentiary value insofar as issue no.1 is concerned. The brothers are contesting and the family/extended family has also split and PW2 their brother in law has deposed in favour of the plaintiff whereas their uncle and cousin brother have deposed in favour of defendant no.1. I am of the view that their evidence has no evidentiary evidence and has to be outrightly rejected.
31.8 Now the main point again to be determined is whether suit property was acquired for the benefit of defendant no.1 and his family. I have also pondered upon the aspect as to when the family of the plaintiff had shifted CS Nos. 517208/16 & 15440/16 Page No. 28/41 out from the suit property any arrangement was made that this property was to be owned by the defendant no.1/his family. Qua the said aspect, the defendant no.1 has not set any case or pleaded but tried to argue that their father had also disposed of the land at Village Mahender Garh without his consent or taking him into confidence. In this regard I again look at the Will Ex.D1/D2 which has been executed by late Sh. Ram Niwas in favour of his grand sons, there is a specific recital that the property E 61 Gali no.16, Sadh Nagar, Palam Colony has been purchased by his younger son Brij Mohan Sharma and the same is a self purchased house. Now the defendant no.1 has relied upon the said Will. Obviously in the event if there would have been any contribution towards purchase of the said house by the father i.e. Ram Niwas it could have been so stated in the Will. Furthermore, there is no reference to the properties/ agricultural land at Village Mahender Garh which obviously were disposed of at much later point of point. Thus, the Will did not cover all the properties of the defendant no.1/dealt with only one house i.e. the suit property and it is also not a complete bequest of all the properties in which Ram Niwas their father had a share.
31.9 As mentioned above, receipts with respect to construction of suit property are in handwriting of their father, from which it is not possible to believe the stand of the defendant no.1 Sh. Ishwar Prasad that he contributed towards purchase or construction of the suit property. Production of the said documents by defendant no.1 is also not of much significance. I go to CS Nos. 517208/16 & 15440/16 Page No. 29/41 the extent that even if any contribution has been made by defendant no.1 being the son of the defendant no.2 that does not make him owner of the property or claim any exclusive right in the property.
31.10 Delving further on this aspect, let me now deal with the property documents relied upon by the parties.
First is Agreement to Sell which is dated 05.04.1982 Ex.P3 in favour of Sh. Ishwar Prasad and Sh. Brij Mohan, both sons of Sh. Ram Niwas. Said Agreement to Sell is only signed by Sh. Ishwar Dayal Mudgal the seller and it does not bear signatures of second party i.e. Ishwar Prasad or Sh. Brij Mohan and it is witnessed by Sh. Ram Avtar Sharma s/o Sh. Hardwari Lal Sharma. There is another witness whose name is not clear. Now the receipt is in favour of both the parties wherein a sum of Rs.7000/ has been received as advance from Ishwar Prasad and Brij Mohan both sons of Ram Niwas. Again this receipt has been signed by the seller Ishwar Dayal. There is no witness to the same. I fail to understand that in the event if defendant no.1 claims to have paid any money towards acquisition of the property atleast he would have signed the Agreement to Sell or the receipt. Infact on both the documents his signatures are conspicuously absent. Merely taking shelter in the plea that the defendant no.1 was unaware about the contents of the documents for 30 long years is altogether completely a hollow plea - which cannot be believed in any manner. Rather to my mind the plaintiff and defendant no.1 not signing the said document probablises the plea that the property CS Nos. 517208/16 & 15440/16 Page No. 30/41 was purchased by Ram Niwas for the benefit of his sons as their names have been incorporated in the Agreement to Sell and receipt and the separate General Power of Attorney has been executed in favour of defendant no.1 In view of the aforesaid discussion, issue No.1 is decided adverse to defendant no.1 Sh. Ishwar Prasad ad in favour of plaintiff Brij Mohan.
32. Issue No.(2)Whether the Agreement to Sell dated 05.04.1982 executed by Sh. Ishwar Dayal in favour of plaintiff and defendant No.1 jointly and the General Power of Attorney dated 05.04.1982 executed by Sh. Ishwar Dayal in favour of Sh. Ram Niwas (defendant No.2) are manipulated and invalid documents as claimed by defendant No.1? OPD1 Issue No.(3)Whether the plaintiff and defendant No.1 have equal rights in the suit property and whether the same liable to be partitioned between them in equal shares as prayed by the plaintiff? OPP 32.1 For the sake of convenience both these issues are dealt together.
32.2 Sh. R.R. Kumar, Ld counsel for defendant no.1 Sh. Ishwar Prasad had addressed his arguments and contended as under:
(i)General Power of Attorney in favour of Sh. Ram Niwas ceased to CS Nos. 517208/16 & 15440/16 Page No. 31/41 operate for the reason that Sh. Ishwar Dayal Mudgal the earlier seller of suit property had expired in the year 1991,
(ii)Infact on the strength of said GPA no Gift Deed could have been executed and the same is invalid and liable to be declared as void/ineffective,
(iii)If Gift Deed ceases to be inoperation or is ineffective, defendant Sh.
Ishwar Prasad is in exclusive possession of the property and is entitled to retain his possession,
(iv)Documents which have been relied upon are Agreement to Sell and receipt both are incomplete documents and have not been signed by the parties to the suit - only signed by the seller and hence cannot be given legal effect to. At best only a suit for specific performance could have been filed by the parties to the suit, time for which has lapsed and as such the defendant no.1 who is in possession is also entitled to enjoy his possession as the LRs of late Sh. Ishwar Dayal Mudgal have not taken any steps against him till date.
32.3 Delving upon these points, let me first of all analyse as to whether the Agreement to Sell Ex.P3 is a valid Agreement to Sell in the sense that the signatures of the purchaser is not reflected thereon. In this regard I may note Section 10 of the Indian Contract Act, 1872 same reads as under:
10.What agreements are contracts. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a CS Nos. 517208/16 & 15440/16 Page No. 32/41 lawful object, and are not hereby expressly declared to be void.
Nothing herein contained shall affect any law in force in [India], and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence, or any law relating to the registration of documents.
32.4 It is but apparent that the Agreement to Sell Ex.P3 on all other aspect is clear except regarding signatures of the purchaser. The identity of the suit property is clear, parties were competent to contract, consideration has passed and in totality the bargaining is clearly decipherable. Obviously the seller had signed on the said Agreement to Sell. There is no protest whatsoever till date by the said Ishwar Dayal Mudgal. No authority has been pointed out by defendant no.1 in support of his contention that the Agreement to Sell was required to be signed by both i.e. buyer and seller. In absence thereof merely to contend that said Agreement to Sell is an incomplete/unenforceable document is an untenable contention. Again I repeat that the defendant no.1 had relied upon a Will wherein the same sets of documents were the basis upon which defendant no.2 had executed a Will/a right was sought to be bequeathed qua the suit property.
32.5 Coming to the second limb of argument that GPA Ex.P4 ceases to exist the moment the principal expired. In this regard it is but apparent that such GPA was created/coupled with interest. Reliance in this regard has CS Nos. 517208/16 & 15440/16 Page No. 33/41 been made to the judgment of Hon'ble High Court of Delhi in the case of "Ramesh Chand v. Suresh Chand & Anr" reported in 188 (2012) DLT 538 by plaintiff and section 53A of the Contract Act, 1872 and relevant para of the same is as under:
4.There is also one other aspect which needs to be clarified before proceeding ahead and which is whether a power of attorney given for consideration would stand extinguished on the death of the executant of the power of attorney. The answer to this is contained in illustration given to Section 202 of the Contract Act, 1872, and the said provision with its illustration reads as under:
"Section 202. Termination of agency, where agent has an interest in subject matter. Where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Illustration
(a)A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b)A consigns 1,000 bales of common to B, who has made advances to him on such cotton, and desires B to sell the common, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."
The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
CS Nos. 517208/16 & 15440/16 Page No. 34/4132.6 General Power of Attorney is not an isolated document - it is part and parcel of a transaction whereby Ishwar Dayal Mudgal had agreed to sell the property coupled with the fact that he had received consideration for the said purpose and the General Power of Attorney was given to effectuate/ conclude the said transaction/bargain whereby the property was agreed to be conveyed to the nominees of Ram Niwas i.e. the person in whose favour the Agreement to Sell was executed. The said General Power of Attorney does not cease to exist upon the demise of late Sh. Ishwar Dayal Mudgal.
32.7 Again for a moment excluding GPA as well as the Gift Deed or eschewing the same altogether from consideration the documents which remained are the original Agreement to Sell i.e. Ex.P4 coupled with the receipt Ex.P5. Both the said documents are valid documents. If I go by that each party is entitled to 50% share. The possessory right itself is partitionable in view of the ratio of Surjeet Singh & Others v. Ekta Gulati reported in Indiakanoon.org/doc/120480809.
32.8 Agreement to Sell and Receipt coupled with GPA create a right in the property which can be protected U/s 53A of the Transfer of the Property Act, 1882 in view of the doctrine of part performance. Defendant no.1 had not, till the year 2014 denied the right of share in the suit property of CS Nos. 517208/16 & 15440/16 Page No. 35/41 the plaintiff or had proclaimed himself to be the absolute owner to the detriment/interest of the plaintiff in any manner whatsoever whereby he could have substantiated his plea that he was in absolute and complete possession of the entire suit property to the exclusion/outster of the plaintiff. It is also relevant to note herein that counting from the Will which has been executed by Ram Niwas i.e. dated 05.03.2003 the suit is within time as the same has been filed on 12.01.2015 within a period of 12 years. No other evidence has been led by the defendant no.1 to underscore his plea that his possession has matured to adverse possession
- apart thereof such a plea was not incorporated in the Written Statement as well though it was feebly argued that the possession of the defendant no.1 has matured/crystalized by way of adverse possession. Needless to additionally submit that the version which has been propounded by the defendant no.1 is that first time he came to know about the documents was when the suit was filed - same also denudes his plea of adverse possession.
32.9 Coming on the aspect of Gift Deed executed by Ram Niwas in favour of his son Brij Mohan by virtue of General Power of Attorney Holder of Ishwar Dayal Mudgal. I note that Ram Niwas was alive when the suit was filed. He supported the case setforth by the plaintiff. When the donor himself had acknowledged the transaction in the course of the judicial proceedings, to contend that the plaintiff should prove the same in accordance with mandate of Section 68 of the Indian Evidence Act, 1872 CS Nos. 517208/16 & 15440/16 Page No. 36/41 is untenable. The reliance on the ratio of Brij Raj Singh (Dead) by LRs & Ors v. Sewak Ram & Ors (MANU/SC/0290/1999) is misplaced. The Gift Deed was made in pursuance of the powers delegated to Ram Niwas by Ishwar Dayal Mudgal in terms of General Power of Attorney Ex.P4 - as incorporated in Clause No.6 which specifically permitted the transfer of the property by way of Gift Deed.
32.10 No suspicious circumstance has been pointed out by the defendant no.1 with regard to said Gift Deed. Again it is relevant to note herein that Ram Niwas had executed the Gift Deed Ex.P6 on 09.10.2014. The said Gift Deed is duly registered on 09.10.2014. Obviously Ram Niwas before said Gift Deed had executed a cancellation of Will as well which he executed on 11.09.2014 and the same is also a document registered on 15.09.2014. It is but obvious that Ram Niwas went to the office of Sub Registrar twice for the said purposes. He died in the year 2016 after the settlement of issues in the present case.
33. Considering the totality of facts and circumstances, issues no.2 and 3 are decided in favour of the plaintiff and against the defendant no.1. Both parties are held having equal rights in the suit property and the plaintiff as such is entitled to partition to his 50% share in the suit property. As such the plaintiff is entitled to a preliminary decree of partition and entitled to 50% share in the suit property i.e. property measuring 200 sq. yards, part of Khasra No.95/21, bearing Municipal No.E47, Sadh Nagar, Gali CS Nos. 517208/16 & 15440/16 Page No. 37/41 No.17, Palam Colony, New Delhi110045 by metes and bounds.
34. Issue No.4 reads as under:
Issue No.(4)Whether the plaintiff is entitled to any damages as claimed by him and if so at what rate and for what period?OPP 34.1 It is stated to be a two bedroom house. Plaintiff has contended that this amount was receivable by him had property being let out.
34.2 Considering that dispute is between siblings and defendant no.2 Ram Niwas had not objected and defendant no.1 was putting up in the suit property with the consent of the parties as well and in view of the fact that the property is old built up, plaintiff Sh. Brij Mohan is held entitled to decree of damages @ Rs.5000/ per month payable by defendant no.1 Ishwar Prasad for use and occupation of share of plaintiff Sh. Brij Mohan since filing of the suit alongwith periodical rise of 10% increase in the abovesaid damages/mesne profit after every one year till handing over of the possession to plaintiff Sh. Brij Mohan of his share in the suit property i.e. till the property is physically possessed back by the plaintiff.
35. In view of the aforesaid discussion, the suit of the plaintiff Brij Mohan stands decreed as indicated hereinabove.
36. Now coming to the counter suit bearing no.15440/2016 filed by Sh.CS Nos. 517208/16 & 15440/16 Page No. 38/41
Ishwar Prasad against Sh. Brij Mohan.
37. Issue No.1 reads as under:
Issue No.(1)Whether the Agreement to Sell dated 5.4.1982 executed by Sh. Ishwar Dayal in favour of plaintiff and defendant No.2 jointly and the General Power of Attorney of the same date executed by Sh. Ishwar Dayal in favour of Sh. Ram Niwas (defendant No.1) are liable to be declared null and void as prayed by the plaintiff?OPP 37.1 In view of findings on the issues as settled in the main suit, Agreement to Sell dated 05.04.1982 is held a valid document. The General Power of Attorney does not cease on the demise of late Sh. Ishwar Dayal Mudgal and as such the Gift Deed does not cease to operate. This issue is decided adverse to the plaintiff Ishwar Prasad and in favour of defendants.
38. Issues No.2, 3 and 4 are interconnected based on same evidence and hence can be conveniently disposed of together. Same read as under:
Issue No.(2)Whether the registered gift deed dated 09.10.2014 executed by defendant No.1 in favour of defendant No.2 is liable to be declared null and void as claimed by the plaintiff?OPP Issue No.(3)Whether the plaintiff is entitled to decree of permanent injunction as prayed for?OPP Issue No.(4)Whether the plaintiff is entitled to decree of mandatory injunction as prayed for?OPP CS Nos. 517208/16 & 15440/16 Page No. 39/41 In view of above findings held in the main suit, issues no.2, 3 and 4 are decided adverse against plaintiff Ishwar Prasad and in favour of the defendants.
Relief:
39. In view of the above findings, the suit of the plaintiff Sh. Brij Mohan bearing CS DJ ADJ No. 17208/16 titled as "Brij Mohan Vs. Ishwar Prasad & Anr." is decreed in favour of the plaintiff Sh. Brij Mohan and against the defendant no.1 Sh. Ishwar Prasad. Rest of the defendants are proforma parties in the said suit.
39.1 A preliminary decree of partition is passed and the plaintiff Sh. Brij Mohan is held entitled to equal share 50% share in the suit property i.e. property measuring 200 sq. yards, part of Khasra No.95/21, bearing Municipal No.E47, Sadh Nagar, Gali No.17, Palam Colony, New Delhi 110045 by metes and bounds.
39.2 Plaintiff Sh. Brij Mohan is also held entitled to decree of damages @ Rs.5000/ per month payable by defendant no.1 Ishwar Prasad for use and occupation of share of plaintiff Sh. Brij Mohan since filing of the suit alongwith periodical rise of 10% increase in the abovesaid damages/mesne profit after every one year till handing over of the possession to plaintiff Sh. Brij Mohan of his share in the suit property.CS Nos. 517208/16 & 15440/16 Page No. 40/41
39.3 Money decree shall be executable upon filing of deficient court fee.
39.4 The suit filed by Ishwar Prasad i.e. suit bearing No.15440/2016 titled as Ishwar Prasad v. Ram Niwas (since deceased) & Anr. stands dismissed.
39.5 No order as to cost.
40. Sh. Tanmay Vats, Advocate having Mobile No.9711904649 is appointed as Local Commissioner to suggest the mode of partition of the suit property. The fee of the Local Commissioner is assessed as Rs.60,000/ to be apportioned equally.
40.1 The Local Commissioner shall inspect the suit property on 11.10.2022 at 2.00pm. SHO, PS Palam to depute two policemen for the purposes of execution of the Commission. Local Commissioner to prepare a site plan.
41. Decree sheet be prepared accordingly in both the cases.
Announced in open court (Sumit Dass)
on 24.09.2022 Additional District Judge04
South West District, Dwarka Courts,
New Delhi.
CS Nos. 517208/16 & 15440/16 Page No. 41/41