Delhi District Court
Kanti Prasad & Ors vs . Chander Bhan Page No.1 Of 17 on 31 March, 2018
IN THE COURT OF MS. VANDANA JAIN
ADDITIONAL DISTRICT JUDGE07
SOUTHEAST DISTRICT, SAKET COURTS
NEW DELHI
CS No. 425/17
[MORE THAN SIXTEEN YEARS OLD]
In the matter of:
1. Sh. Kanti Prasad Gaur
Through his LRs
(I) Smt. Neera Gaur W/o Late Sh. Kanti Prasad Gaur
(II) Sh. Sunil Gaur S/o Late Sh. Kanti Prasad Gaur
(III) Sh Vipin Gaur S/o Late Sh. Kanti Prasad Gaur
(IV) Sh. Vakul Gaur S/o Late Sh. Kanti Prasad Gaur
(V) Mrs. Pinki Sharma W/o Mr Pardeep Kumar
All of R/o H. No. 12/3, Saket Block, Mandawali Fazalpur,
New Delhi
2. Sh. Prakash Chand Bharadwaj S/o Late Sh Neki Ram Bharadwaj
R/o H. No. 822, Chirag Delhi, New Delhi (Expired on 29.01.2013) (Abated)
3. Sh. Nathi Ram Bharadwaj S/o Late Sh. Mehtab Rai Bharadwaj
R/o Mehtab Dharamshala, Kalkaji Mandir, New Delhi.
4. Sh Gauri Shankar Bharadwaj S/o Late Sh. Mehtab Rai Bharadwaj
R/o Mehtab Dharamshala, Kalkaji Mandir, New Delhi.
5. Sh. Chaman Lal Bharadwaj S/o Late Sh. Munshi Ram Bharadwaj
R/o H. No. C16, Sector22, Noida, U.P.
6. Sh. Dheeraj Bharadwaj S/o Late Sh. Ram Kumar Bharadwaj
R/o H. No. 823, Chirag Delhi, New Delhi.
7. Sh. Nanak Chand Bharadwaj S/o Late Babu Lal Bharadwaj
R/o H. No. 824, Chirag Delhi,, New Delhi.
Kanti Prasad & Ors Vs. Chander Bhan Page No.1 of 17
8. Sh. Dharam Pal Bharadwaj S/o Late Babu Lal Bharadwaj
R/o H. No. 824, Chirag Delhi, New Delhi (Expired on 01.01.2006) (Abated)
9. Sh Mohinder Singh Bharadwaj S/o Late Babu Lal Bharadwaj
R/o H. No. 824, Chirag Delhi, New Delhi.
10. Sh Ashok Kumar Bharadwaj S/o Late Babu Lal Bharadwaj
R/o H. No. 824, Chirag Delhi, New Delhi
.........Plaintiffs
VERSUS
1. Sh. Chander Bhan
Through his LRs
1A Smt. Usha Devi W/o Late Raj Kumar
1B Vikas Bharadwaj S/o Late Raj Kumar
1C Bharat Bharadwaj S/o Late Raj Kumar
1D Deepika Pandey W/o Sh Anand Pandey
D/o Late Raj Kumar.
2. Sh Dinesh S/o Late Sh. Chander Bhan.
3. Sh Naresh S/o Late Sh. Chander Bhan
Through his LRs
3A. Sarla Bharadwaj S/o Late Naresh Bharadwaj
3B. Kapil Bharadwaj S/o Late Naresh Bharadwaj
3C Lokesh Bharadwaj
Kanti Prasad & Ors Vs. Chander Bhan Page No.2 of 17
4. Sh. Subhash S/o Late Sh Chander Bhan.
5. Sh Aman @ Kamraj S/o Late Sh. Chander Bhan
6. Mrs Uma @ Yashoda D/o Late Sh Chander Bhan
7. Smt. Sadhna D/o Late Sh. Chander Bhan
(All R/o H. No. 607/1, Chirag Delhi, New Delhi) ......Defendants
Date of Institution : 08.03.2002
Date of arguments : 12.03.2018
Date of Judgment : 31.03.2018
JUDGMENT
1. This is a suit for declaration, permanent injunction and for recovery of Rs. 20,00,000/ plus interest and expenses.
2. Brief facts of the present case are that an ancient temple known as Kalka Ji Mandir, New Delhi is situated near Kalkaji Colony, falling in the Mauza Bahapur, Delhi. It is further submitted that temple of Kalka Ji of Deity of Kali Devi lies in an extensive enclosure and large number of dharamshalas have been constructed at different times. It is further submitted that management, supervision, maintenance, puja and sewa are performed by the pujaris. These pujaris alone share the income and receive offerings. Religious functions, duties and ceremonies are also performed by Pujaris who have to spent as on maintenance or repairs of the temple also. The Pujaris of Mandir Sri Kalkaji are divided in two Thoks known as Thok Jogians and Thok Brahmins. The Thok Jogians is divided in two sects i.e. Gharbari Joggis and Knaphada Nihang Babaji. The Thok Brahmins are further divided into four Thullas i.e. Thulla Tansukh, Thulla Jas Ram, Thulla Ram Baksh, Thulla Bahadur.
Kanti Prasad & Ors Vs. Chander Bhan Page No.3 of 17 It is further submitted that plaintiffs belonged to Thulla Ram Baksh and are descendants of Shri Ram Baksh and as such have a vested right in the performance of Aarti, Puja and other religious duties, rituals works, management, supervision, maintenance, performance of other religious functions, allotment of shops, realization of Teh Bazari and share other incomes from Mandir including offerings and its properties and all other rights and interest amongst themselves like all other Thullas during their turn/Bari.
It is further submitted that for the convenience the turns/baris of all the Thullas are regulated according to their shares. The Baris are adhered strictly as decided by Sh. S.N.Kapur, the then Ld SubJudge 1 st Class, in suit no. 61 of 1964 titled as Mahant Prithi Nath Vs Tula Ram & Ors decided on 01.02.1974.
It is further submitted that in the aforesaid suit, the dispute was in relation to the turn/bari between the plaintiffs and defendants arose and one of such parties Sh Jai Lal filed Civil Reivsion No. 417 of 1972 before the Hon'ble High Court of Delhi wherein a mutual agreement was arrived at between the parties.
It is further submitted that the name of Sh. Manohar Lal son of Sh Trikha through whom the defendant is claiming is also shown as one of the share holders in the aforesaid compromise.
It is further submitted that Sh. Tokhan who was also the descendant of Thulla Ram Baksh died issue less. However, Sh Trikha claimed himself to be the adopted son of Tokhan. It is further submitted that defendant himself in another judicial proceedings stated that the name of the real father of Sh Trikha is Sh Kishan Shahi son of Sh Ram R/o village Ghilniwas (Khalilpur), Thes. Patoaudi, Distt Gurgaon, Haryana.
It is further submitted that defendant by misrepresenting and by playing fraud is claiming to be the descendant of Sh Manohar Lal and on that basis he Kanti Prasad & Ors Vs. Chander Bhan Page No.4 of 17 is claiming 50 % share i.e. 6 pies out of a total of 12 pies. It is further submitted that on the basis of the misrepresentation, defendant illegally collected lakhs of rupees in past. It is further submitted that defendant in suit no. 91 of 1990 filed by Rati Ram and others in Gurgaon has in his deposition categorically stated that he hails from the family of Shri Ram of Ghilnawas. It is further submitted that Gotra of the people belonging to Thulla Ram Baksh is Bhardwaj Indoria Joshi while the Gotra of defendant is Lehar Tawaria. It is submitted that Sh Trikha was in no way related to any of the descendents of Thulla Ram Baksh.
It is further submitted that in January 2002 one of the plaintiff Sh Nathi Ram Bhardwaj who had gone to Gurgaon on 27.01.2002 in connection with suit no. 674/64 titled Ram Kishore Vs Kishan Chand Sharma & Ors in which his wife Smt Ram Wati is defendant no. 2 came to know that a suit seeking declaration and permanent injunction had been filed by one Sh. Rati Ram against the Chander Bhan (defendant herein). It is further submitted that in his written statement, he mentioned that he is the owner of the property inherited from his ancestors. It is further submitted that plaintiff approached the revenue department to confirm the records pertaining to the year 197980. The owner of the land for which the aforesaid litigation is going on is defendant Chander Bhan son of Manohar Lal son of Trikha son of Kishan Sahai son of Shri Ram. It is further submitted that Trikha son of Kishan Sahai resident of village Ghilnawas had got no family lineage with Tokhan through whom the defendant is claiming to have derived his rights. By way of present suit, a decree of declaration is sought that defendant is not a family member/descendant of Thulla Ram Baksh and declare that plaintiffs are the absolute owner of their share and decree of permanent injunction is also sought restraining the defendant and all other persons claiming through or Kanti Prasad & Ors Vs. Chander Bhan Page No.5 of 17 under him from interfering in performance of and and receiving income and offerings and doing all other act, decree of recovery of Rs. 20,00,000/ along with interest.
3. The defendant filed his written statement stating that suit filed by the plaintiff is barred by limitation as Trikha grandfather of the defendant had claimed himself to be the adopted son of Tokhan who had died prior to 1908 09 and in Jamabani of village Chirag Delhi, the name of Trikha is mentioned as adopted son of Tokhan and owner of land which he inherited from Tokhan. He has stated that the ancestors of plaintiffs without making any verification continued to recognize Trikha as descendant of Tokhan who has inherited agricultural land and house in village Abadi of Chirag Delhi belonging to Tokhan and enjoyed the terms of Kalkaji Mandir. It has further stated that no misrepresentation or fraud by defendant has been stated in the plaint. It is stated that adoption of Trikha by Tokhan almost 100 years back cannot challenged now. It is further stated that plaint does not disclose any cause of action as the defendant is treated as member of Thulla Ram Baksh being descendant of Trikha adopted son of Thokan. It is further argued that suit is barred by resjudicata as there have been dispute in relation to the turns between plaintiffs and defendant which were decided by the then Ld Sub Judge. It is also stated that some of the plaintiffs have not joined in filing the suit and, therefore, suit is bad for misjoinder of necessary parties. The allegations made by plaintiffs in the plaint against defendant have been denied and it is stated that suit is misconceived and is liable to be dismissed. with costs.
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4. Replication to the said written statement filed by plaintiff wherein he denied all the averments made by defendant and reiterated the facts as mentioned in the plaint.
5. After completion of pleadings following issues were framed on 13.02.2003 :
1. Whether the suit is barred by limitation ? OPD
2. Whether Sh Tokhan died issueless, is so to what effect ? OPD
3. Whether the defendant had in fact been adopted, if so, whether the adoption was legal? OPD.
4. Whether the defendant made any misrepresentations and played any fraud with the plaintiff, if so, to what effect? OPP
5. Whether the plaintiffs are the absolute owners of 12 pie shares as claimed in para 21 of the plaint ? OPP.
6. Whether the defendant does not belong to Thulla Ram Baksh ? OPP
7. Whether the suit is barred by resjudicata and constructive res judicata as per para 4 of the preliminary submissions in the written statement? OPD
8. Whether the suit is bad for non joinder of necessary parties ? OPD.
9. Relief.
6. Thereafter the matter was listed for plaintiff's evidence. Plaintiff examined himself as PW1. Thereafter, he was duly cross examined by counsel for defendant. Thereafter plaintiff's evidence was closed.
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7. Matter was listed for defendant's evidence. Defendant examined himself as DW1 and he was duly cross examined by the Ld. counsel for plaintiff.
8. I have heard the arguments addressed on behalf of both the parties and have perused the record carefully.
9. I shall deal with the issues one by one.
Issue No.1 Whether the suit is barred by limitation ?
Onus to prove this issue was upon the defendant. Ld counsel for defendant has argued that plaintiff has alleged that one Trikha, grandfather of the defendant had claimed himself to be the adopted son of Tokhan. It is argued that Tokhan had died prior to 190809 and in Jamabandi of Chirag Delhi the name of Trikha is mentioned as adopted son of Tokhan and owner of the land which he inherited from Tokhan and the plaintiffs had accepted the lineage the defendant right from Trikha to Manohar Lal and Manohar Lal to defendant herein as member/clan of Thulla Ram Baksh, therefore, now seeking relief at this stage to declare the defendant as not a descendant Thulla Ram Baksh is hopelessly barred by limitation.
On the other hand, Ld. counsel for plaintiff has argued that earlier the plaintiffs were of the view that defendant is descendant of Tokhan who fell into the clan of Thulla Ram Baksh. However, in the year 2002, plaintiffs had had come to know about a judicial proceeding pending in Gurgaon Court in a suit titled as Rati Ram Vs. Chander Bhan wherein defendant in his deposition had stated that he belongs to the family of Shri Ram of village Ghilnawas, District Gurgaon and his gotra is Lehar Tawaria and only thereafter this suit was filed.
Kanti Prasad & Ors Vs. Chander Bhan Page No.8 of 17 Onus to prove this issue was upon defendant, however, defendant had not discharged his onus. DW1 has only exhibited a will which is in urdu and the witness himself had admitted that he does not know the contents of this deed. Suit was filed in the year 2002. The averment of the plaintiffs that they have come to know about the same after attending the proceedings in Gurgaon court from the deposition of defendant. Therefore, right to sue, in a way had accrued from the date of gaining knowledge. The relief sought sought on the face of it cannot be said to be barred by limitation but the rest of the onus is upon the plaintiffs to see whether they can prove this case on their own. The issue of limitation is decided against the defendant and in favour of the plaintiffs.
Issue no. 2 Whether Sh Tokhan dies issueless, is so to what effect ?
Onus to prove this issue was upon defendant. Ld counsel for plaintiffs has argued that earlier it was known that Tokhan had not died issue less but after coming to know about the case filed in Gurgaon, titled as Rati Ram Vs. Chander Bhan, it has become clear that Trikha was not adopted son of Tokhan and, therefore, he died issue less and defendant is not entitled to get any share from the offerings or Teh Bazari as a member of family of Thulla Ram Baksh. Ld counsel for plaintiff has filed written arguments a day before the judgment where he has written that Trikha was the son of sister of Tokhan and he cannot be adopted being a sister's son in view of judgment Abhiraj Kuer Vs. Debendra Singh AIR 1962 SC 351 wherein it is held that: "It is clear that none of the reasons which justify the view that a breach of the first two rules in Ashvalayana's text viz., the rules against marriage of a sapinda girl, or a sagotra girl, should have the consequence that the marriage should be invalid are present in the case of a breach of the third rule, which is against marrying a Viruddha Sambandha girl.
Kanti Prasad & Ors Vs. Chander Bhan Page No.9 of 17 It appears clear to us that Ashvalayana himself did not intend the rule against marrying a Viruddha Sambandha girl as a mandatory prohibition. This must have been even more clear to Nanda Pandit and so when extending Viruddha Sambandha to adoption on the very basis of Ashvalayana's rule against Viruddha Sambandha marriage, Nanda Pandit could not have but intended his rule against Viruddha Sambandha adoption as a mere recommendation and not a mandatory prohibition."
Ld counsel for plaintiffs has further relied upon judgment "Jai Singh Vs Shakuntala AIR 2002 SC 1428 wherein it is held that: "It is on the factual backdrop, the High Court upon, recording the fact of the presumption being rebuttable, came to a conclusion negating the adoption. On the wake of the aforesaid, we do not see any reason to lend concurrence to the submissions of Mr. Jain that the statutory presumption should give way to all other instances available on record. The presumption u/s 16 being a rebuttable presumption as the statute prescribes and on the state of evidence available on record question of decrying the order of the trial court as also of the two appellate courts on the fact situation of the matter in issue cannot be termed to be so perverse so as to authorize this court to scan the evidence and reappreciate the same. This is where Mr Ramachandran contended that scope of Article 136 being limited and by reason of definite allegation of fraud in the matter bringing forth the document of adoption interference with the orders of three different forums would not arise. We do find a great deal of substance thereon since the appreciation of evidence as noticed above cannot be had at this stage of the proceedings unless the order can be ascribed to be totally perverse."
Ld counsel for plaintiffs has also relied upon judgment Rattan Lal @ Babu Lal Chunilal Samsuka Vs Sundarabai Govardhandas Samuka (D) Thr. LRs & Ors.
Kanti Prasad & Ors Vs. Chander Bhan Page No.10 of 17 On the other hand, counsel for defendant has argued that Tokhanhad adopted Trikha in his lifetime. Trikha had inherited the property i.e. agricultural land, house of Tokhan and thereafter the father of the defendant Manohar Lal had lived there and consequently defendant was living there and, therefore, it cannot be said that Tokhan had died issue less, though, in fact no natural child was born from Tokhan.
I shall first deal with the argument of Ld counsel for plaintiff taken in written arguments moreover adoption of Trikha has not been challenged in the present suit and no such relief has been claimed. This argument about adoption of Trikha being invalid being son of sister of Tokhan has been taken for the first time in written arguments. It had never been pleaded nor proved. Therefore, judgment Abhiraj Kuer (Supra), Jai Singh (Supra) and Rattan Lal @ Babu Lal Chunilal Samsuka (Supra) are not applicable to case in hand.
Perusal of the testimony of PW1 shows that PW1 had admitted that he had never seen Tokhan and he had also not seen Trikha. He also admitted that Manohar Lal is son of Trikha. He has further admitted that Manohar Lal and Chander Bhan used to perform puja and used to get share of offerings and Teh Bazari. The witness pleaded ignorance with respect to the fact that whether Tokhanhad agricultural land and house in Chirag Delhi but he had not specifically denied the same. He stated that he did not know whether Trikha had inherited the land and house of Thokan. Witness has specifically not denied this as well. He admitted that Manohar Lal was living in house no. 607, which previously had no municipal number. He stated that he do not know from where Manohar Lal got that first. He also stated that agricultural land was sold in the year 1950. At one stage witness submits that he is not aware of any agricultural land and at the later stage witness has stated that agricultural land was sold in the year 1950. The answers given by PW1 shows that he was Kanti Prasad & Ors Vs. Chander Bhan Page No.11 of 17 deliberately withholding information which he was aware of from the court using the cross examination. It is pertinent to mention here that all these questions have been asked in a sequence and being part of cross examination of PW1 were in respect of agricultural land allegedly belonging to Tokhan in Chirag Delhi. Interestingly witness has admitted that he had seen the jamabandi of Chirag Delhi of year 1950 where he had seen the name of Manohar Lal as son of Trikha. This admission on the part of the witness shows that Trikha was also recognized in Jamabandi being father of Manohar Lal. It is not the case of the plaintiff that Trikha was having any other land except the one inherited from Tokhan in village Chirag Delhi. This shows that Trikha had inherited agricultural land and house from Tokhan. This issue is decided in favour of the defendant and against the plaintiff.
Issue No. 3 Whether the defendant had in fact been adopted, if so, whether the adoption was legal?
Issue No. 3 has been framed in respect of adoption of defendant. It appears that it has been inadvertently framed as defendant had never been adopted by anyone. It was his forefather Trikha who was allegedly adopted by Tokhan the member of family of Thulla Ram Baksh. As far as his adoption is concerned, though, the onus to prove the same was put upon the defendant, however, the plaintiffs have not sought any relief qua adoption of Trikha. In fact the entire controversy is with respect to adoption of Trikha. The question is whether Tokhan had adopted Trikha or not which is not a subject matter in the present case directly. Though the plaintiffs under the guise of relief of declaration declaring defendant to be not a member of Thulla Ram Baksh have tried to challenge adoption of Trikha by Tokhan. It is a matter of fact that Kanti Prasad & Ors Vs. Chander Bhan Page No.12 of 17 Thokhan had died in the year 190809, meaning thereby that adoption had taken place even before that. If the adoption of Trikha would have been challenged, which was about 100 years back, the suit would have been hopelessly barred by limitation. It appears that this is the reason why this relief was not sought despite moving around only argument of adoption of Trikha. Keeping in view the fact that adoption of Trikha has not been challenged by plaintiffs, there is no requirement of dealing with the same. In any case this issue was not framed. It is pertinent to mention here that none of the parties or their advocates during the course of arguments have pointed out that this issue was wrongly framed. Defendant was never adopted by anyone. He was the son of Manohar Lal so this issue is decided in favour of the defendant.
Issue No. 4 Whether the defendant made any misrepresentation and played any fraud with the plaintiff, if so, to what effect? & Issue No. 6 Whether the defendant does not belong to Thulla Ram Baksh ?
Issue No. 4 & 6 are being inter related are taken up together. Onus to prove both these issues was upon plaintiff. Except for saying that defendant in case titled as Rati Ram Vs. Chander Bhan in Gurgaon had stated in his deposition that he belonged to family of Krishan Sahai, they have not brought anything on record to show that defendant had made any misrepresentation or fraud upon the plaintiff.
Section 17 of Indian Contract Act defines fraud as under: "Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
Kanti Prasad & Ors Vs. Chander Bhan Page No.13 of 17 (2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of preforming it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
Section 18 of Indian Contract Act defines misrepresentation as under: "(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true,though he believes it to be true;
(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement."
There is not even a single line in it which could shows that these lines were used to deceive the plaintiffs. The manner in which was fraud had been played is also not mentioned fraud has to be specifically pleaded and proved which has not been done in the present case. It is pertinent to mention here that as per the own version of the plaintiffs which is mentioned in the plaint itself, a suit was filed titled as Mahant Prithi Nath Vs. Thula Ram which was decided on 01.02.1974 wherein the turns/baris of all the Thullas were regularized as per their shares. In that case a civil revision was filed before Hon'ble High Court of Delhi wherein a compromise was arrived at between the parties and the civil revision was disposed off on 04.04.1973. As per that compromise, Manhoar Lal was one of the shareholder/parties to the compromise which has is stated by plaintiffs in para ten of the plaint itself. It is an admitted fact that Manohar Lal was the son of Trikha. In those proceedings the Manohar Lal was granted the share on the basis that he was son of Trikha.
Kanti Prasad & Ors Vs. Chander Bhan Page No.14 of 17 Trikha used to claim himself as adopted son of Tokhan. Though PW1 had pleaded ignorance with respect to offerings received by Trikha and Tokhan in his cross examination, however, it is an admitted fact that Manohar Lal and his son Chander Bhan who is defendant herein perform pooja and receive shares of offerings and Teh Bazari being the descendant of Tokhan. Even if the contentions made by the plaintiff regarding the claim of defendant in another suit in Gurgaon are presumed to be correct to the extent that he is the descendant of Krishan Sahai, it cannot be said that defendant had made any misrepresentation or played any fraud upon the plaintiffs. Plaintiffs themselves had been treating the defendant as descendant of Tokhan and had been giving the shares of offerings and Teh Bazari to him. Without challenging the adoption of Trikha by Tokhan, defendant cannot be straightway declared to be not falling under the clan of Thulla Ram Baksh. Adoption deed has not been challenged by plaintiffs. The controversy could be put to rest only by proving the adoption of Trikha to be non existent or fake which has not been done by plaintiffs in the present case. Hence issue no. 4 & 6 are decided against the plaintiff and in favour of the defendant.
Issue No. 7 Whether the suit is barred by resjudicata and constructive res judicata as per para 4 of the preliminary submissions in the written statement?
As far as this issue is concerned, it is very important to develop upon the ingredients of Res Judicata as under: "(I) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually (Explanation III) or constructively (Explanation IV) in the former suit (Explanation I). (Explanation VII is to be read with the condition.). (II) The former suit must have been a suit between the Kanti Prasad & Ors Vs. Chander Bhan Page No.15 of 17 same parties or between the parties under whom they or any of them claim. (Explanation VI is to be read with this condition.).
(III) Such parties must have been litigating under the same title in the former suit.
(IV) the court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised.
(Explanation II and VIII are to be read with this condition.) (V) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit. (Explanation V is to be read with this condition.)"
This plea has been raised by defendant in view of the dispute pending between parties which were decided in a civil suit disposed off on 01.02.1974, however, no evidence has been led by defendant in this regard and no specific arguments has been taken up by counsel for defendant at the time of addressing final arguments in respect of this issue. No document has been filed and no argument had been addressed in order to show that present suit is barred by res judicata. Therefore, issues is decided in favour of the plaintiff and against the defendant.
Issue No. 8 Whether the suit is bad for non joinder of necessary parties ?
Onus to prove this issue upon defendant. No specific defence has been led on this issue by defendant, however, in the WS, it is stated that certain persons have not been joined by plaintiff in filing suit as mentioned by plaintiffs themselves in para 9 of the plaintiff. It is an admitted fact that some of the plaintiffs have come to the court and some have not come, however, no relief has been specifically sought which cannot be decided in their absence. In the absence of evidence on this issue, this issue is decided in favour of the plaintiff and against the defendant.
Kanti Prasad & Ors Vs. Chander Bhan Page No.16 of 17 Issue No. 5 Whether the plaintiffs are the absolute owners of 12 pie shares as claimed in para 21 of the plaint ?
Since issue no. 4 & 6 have already been decided against the plaintiff. Therefore, this issue is also decided against the plaintiffs and in favour of the defendant.
Relief.
Since issue No. 2, 4, 5 & 6 have been decided against plaintiff. Therefore, plaintiffs are not entitled to any relief.
Suit of the plaintiffs is dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open ( VANDANA JAIN)
court on 31.03.2018 Additional District Judge07
South East, Saket Courts,
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