Delhi District Court
Bhagwant Prasad vs Manoj Sharma And Others on 23 May, 2025
IN THE COURT OF AASHISH GUPTA, DISTRICT JUDGE-01,
NORTH-EAST DISTRICT, KARKARDOOMA COURTS, DELHI
In the matters of
CS No. 357/19
CNR No. DLNE010046822019
Sh. Bhagwant Prasad
S/o Late Sh. Ram Naresh
R/o D-7/74, Dayalpur,
Delhi - 110094 ..... Plaintiff
versus
1. Manoj Sharma
S/o Sh. Bhagwant Prasad
R/o D-7/74, Dayalpur,
Delhi - 110094
(through Defendant No. 2)
Also presently at: Service & Trading Co.
(Real estate Division)
Head Branch-Vade Kabir
Second Branch- Al-Sukhre Building
Post Box No. 823, RUWI
Postal Code-112,
Muscut, Sultanate of Oman
2. Smt. Meena Sharma
W/o Sh. Manoj Sharma
3. Rajender Sharma
S/o Sh. Bhagwant Prasad
All R/o D-7/74, Dayalpur,
Delhi - 110094
CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
&
CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 1 of 17
4. Smt. Nidhi Pandey
W/o Sh. Neeraj Pandey
D/o Sh. Bhagwant Prasad
R/o H.No. 158/15A, Gali No. 4,
D-Block, Mukund Vihar,
Karawal Nagar,
Delhi - 110094 ..... Defendants
Date of institution : 10.12.2019
Reserved on : 09.05.2025
Date of Decision : 23.05.2025
*****
CS 50/24
CNR No. DLNE010005012024
Manoj Sharma
S/o Sh. Bhagwant Prasad
R/o D-7/74, Dayalpur
Delhi - 110094
(through attorney Meena Sharma) ..... Plaintiff
versus
1. Bhagwant Prasad
S/o Late Sh. Ram Naresh
2. Rajender Sharma
S/o Sh.Bhagwant Prasad
Both R/o D-7/74, Dayalpur,
Delhi - 110094
3. Nidhi Pandey
D/o Sh. Bhagwant Prasad
CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
&
CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 2 of 17
R/o 158/15-A, Gali No. 4, D-Block,
Mukund Vihar, Karawal Nagar,
Delhi -110094 .......Defendants
Date of institution : 23.02.2024
Reserved on : 09.05.2025
Date of Decision : 23.05.2025
JUDGMENT
1. All the parties herein are Hindu by religion and governed by Hindu Succession Act, 1956.The aforesaid fact is undisputed between the parties.
2. Vide this common judgment, I propose to dispose off the Suit No. CS 357/19 and Suit No. CS 50/24.
3. The trial of both the suits was consolidated vide order dated 09.05.2025 (passed in CS No. 357/19) with the consent of parties. Vide the said order, it was directed that the evidence recorded in suit No. CS 357/19 shall be treated as evidence in suit CS No. 50/24. The relevant portion of the said order reads as under:-
"2. Parties agree that the claim in this suit is essentially the defence of plaintiff in suit no. 50/24 (wherein he is arrayed as D-1). They also agree that the claim set up in suit no. 50/24 by plaintiff therein (who is D-1 in this case) is the defence of D-1 in this case. The main contesting parties in both the suits is Bhagwant Prasad on one hand (who is plaintiff herein and D-1 in suit no. 50/24) and Manoj Sharma (who is D-1 in this case and plaintiff in suit no.50/24).
3. They, thus, pray that both the suits can be consolidated (for the purposes of trial) and the evidence already recorded in this suit can be read as evidence in suit no. 50/24. They submit that this would obviate the need to record evidence in the said suit CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
& CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 3 of 17 and both the matters can be disposed off by a common judgment so that the litigation between the parties can come to an end.
4. Signatures of the counsels of the parties and the parties are taken on this order-sheet and both the suits are consolidated for the purposes of trial with direction that the evidence in suit no.357/19 be treated as evidence in suit no. 50/24."
4. Now, before proceeding further, it shall be relevant to note the relationship between the parties which is as under:-
TABLE-I S.No (1) Name of party (2) Relationship between (3) Status of party (4) Status of party the parties in reference to in Suit No. CS in Suit No. 50/24 column (1) 357/19
1. Bhagwant Prasad Father of person Plaintiff Defendant No. 1 mentioned at S.No. 2, 4 and 5.
2. Manoj Sharma Son of person mentioned Defendant No. 1 Plaintiff at S.No. 1.
He is husband of person mentioned at S.No.3 and brother of person mentioned at S.No. 4 and 5
3. Meena Sharma Daughter-in-law of Defendant No. 2 Not a party to the person mentioned at suit.
S.No.1 and wife of person mentioned at S.No. 2
4. Rajender Sharma Son of person mentioned Defendant No. 3 Defendant No. 2 at S.No. 1.
He is brother-in-law of person mentioned at S.No.3 and brother of person mentioned at S.No. 2 and 5.
CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
& CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 4 of 17
5. Nidhi Pandey Daughter of person Defendant No. 4 Defendant No. 3 mentioned at S.No. 1.
She is sister-in-law of
person mentioned at
S.No.3 and sister of
person mentioned at
S.No. 2 and 4
TABLE-II
S.No Details of property Owner of Nature of Name of
property s per documents. property given
documents for easy
available on reference in the
record. body of
judgment
1. Property bearing No. D-7/74, Kitaba Devi GPA, agreement to Property-I
Dayalpur, Delhi - 110094, sell, Will and
situated in Khasra No. 305, receipt of Rs.
Vill. Mustafabad in the abadi 40,000/- all dated
of Dayalpur, Delhi-110094 16.01.1995 (all the
measuring 112 Sq. Yards said documents are
unregistered,
except the Will).
2. Property/plot situated in Kitaba Devi Registered sale Property-II
Khasra No. 155, Vill. Haqiqat deed dated
Pur @ Khudabara, Tehsil 18.10.2010.
Ghaziabad.
5. For easy reference and in order to avoid any confusion, parties in the two suits shall be referred by their names in the body of this judgment.
CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
& CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 5 of 17 Facts of suit CS No. 357/19
6. Bhagwant Prasad had instituted the above suit on the contention that he purchased property-I from his own funds in January 1995 through GPA, agreement to sell etc. The said property, as per Bhagwant Prasad was purchased in the name of his wife Kitaba Devi. It is his specific case that Kitaba Devi was a housewife and he used to send all his salary/income into her bank account from Oman (where he was working as a gardener since 1985) and from such funds, the aforesaid property was purchased in the name of his wife Kitaba Devi.
7. Thereafter, the first floor of the said property was got constructed by him and he allowed his son Manoj Sharma and his wife Meena Sharma to stay therein as licensees.
8. It is his case that his son Manoj Sharma is working abroad and behaviour of Manoj's wife is inimical towards his family and therefore, he terminated the license of Manoj and Meena on 17.06.2019.
9. It is his case that despite termination of the said license, neither Manoj nor Meena have vacated the first floor of the above property and thus, he is before this Court inter-alia seeking a declaration that he is owner of the above property. He has also prayed for a decree of mandatory injunction directing Manoj and Meena to vacate the first floor of his property. He further prays for a decree of damages/mesne profits assessed @ Rs. 10,000/- CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
& CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 6 of 17 per month from the date of termination of license till vacation of property by Manoj and Meena.
10.On the other hand, the contesting defendants in this suit viz Manoj and Meena claim that Manoj has a share (being co-owner) in property-I alongwith property-II.
11.They claim that the properties described in Table-II above are both in the name of Late Kitaba Devi and since she died intestate, with Manoj as one of the legal heirs of Kitaba Devi, they occupy the property in question as co-owner and not as a licensee. Thus, they pray for dismissal of the suit.
Facts of suit CS No. 50/24.
12.This suit is preferred by Manoj Sharma whereby he has sued his father Bhagwant Prasad, brother Rajender Sharma and sister Nidhi Pandey for partition of properties described in Table-II above on the ground that he being a class-I legal heir of his late mother Kitaba Devi, he is entitled to a share in both the properties.
13.He has also sought a decree of permanent injunction, restraining the defendants from creating any third party interest in the properties described in Table-II above.
14.It is pertinent to note that the present suit has been filed by Manoj through his wife Meena Devi who claims to be a duly appointed CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
& CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 7 of 17 SPA holder of Manoj. But, the original of the said SPA has not been filed before this Court nor the same is a dated document. Again, the said SPA is stated to have been executed by Manoj in Delhi and is drawn on a stamp paper issued on 03.04.2023. I shall come back to this fact a little later.
15.This suit is resisted by Bhagwant Prasad and Rajender Sharma on the ground that though both the properties in question were purchased in the name of Kitaba Devi but the funds for the said purchase were supplied by Bhagwant Prasad and therefore, Manoj shall have no right in either of the properties.
16.I may note that in both the suits, Nidhi Pandey (daughter of Bhagwant Prasad and Kitaba Devi) has remained ex-parte.
Issues framed.
In suit CS No. 357/19(i) Whether the plaintiff is entitled for decree of declaration, as prayed for? OPP
(ii) Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for? OPP
(iii) Whether the plaintiff is entitled for a decree of damages/mesne profit, as prayed for? OPP
(iv) Relief.
CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
& CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 8 of 17 In suit CS No. 50/24
i) Whether the plaintiff is entitled to a decree of partition as prayed for in prayer (a) of the plaint? OPP
ii) Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer (b) of the plaint? OPP
iii) Relief.
Evidence led
17. It is pertinent to note that evidence was led only in CS No. 357/19 and parties agreed that the same evidence shall be read for deciding suit CS No. 50/24.
18.Bhagwant Prasad led evidence detailed as under:-
S.No Particulars of Nature of witness Remarks witness
1. Bhagwant Prasad/ He is plaintiff in suit No. PW-1 CS 357/19. He tendered his evidence by way of affidavit Ex. PW1/1 whereby he reiterated the contents of his plaint.
2. Sh.Rajender He is son of Bhagwant It is pertinent to note that Sharma/ PW-2 Prasad. He tendered his this witness had stepped evidence by way of in the witness box when affidavit Ex. PW2/1 the defence of all the defendants was not on record. But, eventually, defence of Manoj and Meena was taken on record vide order dated 05.06.2023 and issues CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
& CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 9 of 17 were framed in the matter. But, this witness never stepped in the witness box thereafter and therefore, the evidence of this witness cannot be treated to form part of record for deciding the present suits.
19.Bhagwant Prasad has relied upon the following documents:-
S.No. Nature of documents Exhibit/Mark No.
1. Copy of aadhar card Ex.PW1/A (OSR)
2. Copies of GPA, agreement to sell, payment Ex.PW1/B (colly) (OSR) receipt all dated 16.01.1995 and Registered Deed of Will dated 16.01.1995.
3. Original site plan. Ex.PW1/C
4. Copies of money transfer slip and bank Ex. PW1/D (colly) (OSR) statement of Smt. Kitaba Devi (12 pages)
5. Copies of money transfer slips and three Ex.PW1/E (colly) (OSR) bank account statements (34 pages)
6. Copy of death certificate of Smt. Kitaba De-exhibited and marked Devi. as Mark A
7. Copy of complaint dated 29.04.2019 Ex. PW1/G (OSR)
8. Copy of complaints dated 02.09.2019, Ex.PW1/H (colly) (OSR) 06.05.2019, 17.06.2019 and 14.10.2019 (5 pages)
9. Copy of bank statement of Smt. Kitaba Devi Ex. PW1/I (OSR) (3 pages) CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
& CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 10 of 17
20.Thereafter, Meena Sharma stepped in the witness box as DW-1 and tendered her evidence by way of affidavit Ex. DW1/A whereby she reiterated the averments made in the written statement. She relied upon photocopies of documents with respect to payment sent by Manoj Sharma to late Kitaba Devi and Rajender Sharma through NEFT/other modes Ex. PW1/D1 to Ex. PW1/D6 and her aadhar card Ex. DW1/2.
21. I have heard arguments advanced by Ld. Counsel for parties and have carefully perused the record.
Analysis and findings in CS No. 357/19.
Issue No. (i), (ii) and (iii)
(i) Whether the plaintiff is entitled for decree of declaration, as prayed for? OPP
(ii) Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for? OPP
(iii) Whether the plaintiff is entitled for a decree of damages/mesne profit, as prayed for? OPP
22.All the issues are inter-linked and are taken together.
23.The case of Bhagwant Prasad is that he should be declared as the owner of property-I described in Table-II above on the ground that he actually bore the entire expense for the purchase of the said property. As per his oral testimony Ex. PW1/1, his wife CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
& CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 11 of 17 Kitaba Devi was a housewife and he used to remit his salary/income from Oman (where he worked as a gardener) into the bank account of Kitaba Devi. Thus, since Kitaba Devi had no income and it was his money which was used to purchase the property in question, therefore, he should be declared owner of the same.
24.He further claims that since he is the owner of the property, Manoj and Meena have no right, title or interest in the property-I and they are mere licensees. He prays that their license stood terminated on 17.06.2019 and thus, they should be asked to vacate the property (by way of mandatory injunction) and be also asked to pay damages/mesne profits.
25.Now, it is pertinent to note that Bhagwant Prasad has himself placed on record Ex. PW1/B (OSR). The said exhibit is a bunch of documents in the nature of unregistered GPA, agreement to sell, receipt etc. The said documents are in name of Kitaba Devi. It is pertinent to note herein that receipt relied upon by the plaintiff (forming part of Ex. PW1/B) states that the executant to the said receipt namely Gyas Chand has received in advance a sum of Rs. 40,000/-..... from Smt. Kitaba Devi. Thus, as per the said document, the consideration for the property-I was paid by Kitaba Devi.
26.U/S 91 r/w 92 of Indian Evidence Act, 1872, any oral evidence qua terms of a contract (which has been reduced in a form of a CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
& CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 12 of 17 document) shall be admitted for the purposes of contradicting, varying, adding to or subtracting from its terms. It means that no oral evidence can be admitted qua the manner in which the consideration qua the purchase of property-I, in the manner prayed by Bhagwant Prasad.
27.What Bhagwant Prasad is saying qua his ownership is his oral assertion that he paid money qua the property in question. But, as per the document Ex. PW1/B (especially the receipt in question), the consideration/money qua the property in question was given by Kitaba Devi herself and not by Bhagwant Prasad. Thus, once the document itself shows that the money for the property was paid by Kitaba Devi, under Section 92 of Indian Evidence Act, 1872, oral testimony of Bhagwant Prasad cannot be admitted in evidence to dispute/vary the said document.
28.Now once the oral testimony of Bhagwant Prasad cannot be admitted in view of the above, there is no question of Bhagwant Prasad being declared as sole owner of property-I. Since documents Ex. PW1/B stand in the name of Kitaba Devi and she died intestate, at best, Bhagwant Prasad (being husband and one of the class-I legal heirs of Kitaba Devi) can be treated as a co- owner of the said property and not its sole owner.
29.Accordingly, issue No. (i) noted above is decided against Bhagwant Prasad and in favour of Manoj Sharma and Meena Sharma.
CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
& CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 13 of 17
30.As per record, Kitaba Devi has died intestate. This fact is specifically claimed in the evidence filed by Meena Sharma (see her affidavit in evidence Ex. DW1/A). This fact is not disputed by any of the parties before this Court. Now, with property-I being in the name of Kitaba Devi and Kitaba Devi leaving behind four class-I legal heirs (with one of them being Manoj), Manoj cannot be treated to be a mere licensee in the said property. He is co- owner in the said property and his wife Meena is occupying the same as her matrimonial house.
31.If that be the case, the contention of Bhagwant Prasad that Manoj and Meena were inducted as licensees in property-I (sometime in 2006) and their license was terminated by him in 2019, is a legally untenable assertion. A co-owner cannot be a licensee in the property and therefore, the said contention of Bhagwant Prasad is incorrect. If that be the case, neither this Court can direct Manoj and Meena to vacate the property nor can they be asked to pay any damage/mesne profits for occupying the same.
32.Accordingly, issue No. (ii) and (iii) are decided against Bhagwant Prasad and in favour of Manoj and Meena.
Analysis and findings in CS No. 50/24.
Issue No. (i) and (ii) CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
& CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 14 of 17
i) Whether the plaintiff is entitled to a decree of partition as prayed for in prayer (a) of the plaint? OPP
ii) Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer (b) of the plaint? OPP
33.Manoj has come before this Court inter-alia seeking partition of two properties described in Table-II.
34.It is pertinent to note that the present suit has been filed by Manoj through his wife Meena Devi who claims to be a duly appointed SPA holder of Manoj. But, the original of the said SPA has not been filed before this Court nor the same is a dated document. Again, the said SPA is stated to have been executed by Manoj in Delhi and is drawn on a stamp paper issued on 03.04.2023.
35.It may be noted that during the course of arguments, it transpired before this Court that Manoj actually lives in Oman. Now before the suit can be treated to have been duly instituted, it was necessary for him to place on record a duly executed attorney in favour of his wife Meena Devi. But, as noted above, he has not filed the original of SPA before this Court purported to have been given to his wife. The said document is undated, it is unattested by any Notary Public and it is not clear from the record as to whether Manoj was in India when he executed the said SPA.
36.If Manoj was in India when he executed the SPA placed on record, why the original thereof has not been filed by Manoj. If the said SPA has been executed in Oman (where admittedly CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
& CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 15 of 17 Manoj is currently employed for last many years), the said document should have said so and the same should have been duly attested and apostilled as per the Hague Convention of which India is a party.
37.The said SPA has not been led in evidence and is a mere photocopy which cannot be treated to be admissible in evidence. Even if it is taken to be admissible in evidence, still, the said document cannot be treated as a duly executed document authorising Meena to institute the present suit. With the date missing in the said document and the document claiming that it is executed in Delhi and with its executant Manoj being employed in Oman for last many years, it raises a grave suspicion about the due execution of the said document.
38.Since, Manoj has not filed a duly executed SPA before this Court in favour of his wife, it cannot be said that Meena had the necessary authority to institute the present suit, for and on behalf of Manoj. Thus, in the absence of a properly executed attorney, the present suit cannot be adjudicated and decided at the instance of an unauthorised person i.e. Meena Devi.
39.Thus, the present suit is liable to fail on this count itself and therefore, there is no need to decide the issues framed in this case. It is ordered accordingly.
CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
& CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 16 of 17 Conclusion and relief.
In Suit No.CS 357/1940.In view of the fact that all the issues in this case have been decided against Bhagwant Prasad, this suit fails. It is dismissed. No order as to costs.
In suit No. CS 50/2441.In view of the facts discussed above, the present suit is dismissed.
No order as to costs.
42.Let separate decree sheets in each of the two suits be prepared accordingly.
43.Copy of this judgment be placed in each of the two case files.
Digitally signed by AASHISH GUPTAAASHISH Date:
GUPTA 2025.05.23
Announced in the Aashish Gupta 17:01:50
+0530
open Court on 23.05.2025 District Judge-01, North-East District,
Karkardooma Courts, Delhi
CS No.357/19 Bhagwant Prasad Vs. Manoj Sharma & Ors.
&
CS No. 50/24 Manoj Sharma Vs. Bhagwant Prasad 17 of 17