Delhi District Court
Sh. Anil Kumar Sharma S/O Late Sh. ... vs (1) Smt. Usha Sharma W/O Sh. Vijay Kumar ... on 25 March, 2015
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
Civil Suits No. 19/14 & 20/14
CS No. 19/14
Case I.D. Number : 02402C0216942009
IN THE MATTER OF :
Sh. Anil Kumar Sharma S/o Late Sh. Kashmiri Lal Sharma
R/o 1/6473, East Rohtash Nagar, Azad Gali,
Shahdara, Delhi110032 .......Plaintiff
V E R S U S
(1) Smt. Usha Sharma W/o Sh. Vijay Kumar Sharma
D/o Late Sh. Kashmiri Lal Sharma R/o 1/9864B, Street
No. 1, West Gorakh Park, Shahdara, Delhi110032
And Also C/o the Principal, Green Field Public School,
G. T. B. Enclave, Dilshad Garden, Delhi110093.
(2) Smt. Reeta Malhotra W/o Sh. Rakesh Malhotra,
D/o Late Sh. Kashmiri Lal Sharma R/o 835, Second
Floor, Surya Nagar, Distt. Ghaziabad ( U. P. ).
(3) Sh. Amrit Prakash Sharma S/o Late Sh. Om Prakash Sharma
and husband of Late Smt. Geeta Sharma
(3i) Sh. Jai Sharma S/o Sh. Amrit Prakash Sharma and Smt.
Geeta Sharma ( deceased) both R/o H. No. 71,
Vivek Nagar, Civil Lines, Ludhiana ( Punjab)
(3ii) Smt. Shveta Kaushal W/o Sh. Vimil Kaushal
CS Nos. 19/14 & 20/14 page 1 of 15
Anil Sharma Vs. Usha Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
3119, Mallbrid GBCrescent MIIs Sanga On Tario, Canada
Code L4T2C5 ( Canada )
(4) The Sub Registrar, SRIV,
Deputy Commissioner Office Complex,
Bunkar Vihar, North East Distt.
Nand Nagari, Delhi
(5) NCT of Delhi through the Secretary
Revenue Department Govt. of NCT New
Secretariat, Near ITO,
New Delhi110002 ..... Defendants
Date of Institution of suit :29.07.2009
Received in this Court :18.01.2014
Arguments heard on :24.03.2015
Date of Judgment/Order :25.03.2015
Decision : Suit dismissed with costs
CS No. 20/14
Case I.D. Number : 02402C0073052009
IN THE MATTER OF :
Sh. Anil Kumar Sharma S/o Late Sh. Kashmiri Lal Sharma
R/o 1/6473, East Rohtash Nagar, Azad Gali,
Shahdara, Delhi110032 .......Plaintiff
V E R S U S
(1) Smt. Usha Sharma W/o Sh. Vijay Kumar Sharma
D/o Late Sh. Kashmiri Lal Sharma R/o 1/9864B, Street
No. 1, West Gorakh Park, Shahdara, Delhi110032
And Also C/o the Principal, Green Field Public School,
G. T. B. Enclave, Dilshad Garden, Delhi110093.
CS Nos. 19/14 & 20/14 page 2 of 15
Anil Sharma Vs. Usha Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
(2) Smt. Reeta Malhotra W/o Sh. Rakesh Malhotra,
D/o Late Sh. Kashmiri Lal Sharma R/o 835, Second
Floor, Surya Nagar, Distt. Ghaziabad ( U. P. ).
(3) Amrit Prakash Sharma S/o Late Sh. Om Prakash Sharma
and husband of Late Smt. Geeta Sharma
(4) Sh. Jai Sharma S/o Sh. Amrit Prakash Sharma and Smt.
Geeta Sharma
( The respondents No. 3 & 4 resident of H. No. 71,Vivek
Nagar,
Civil Lines, Ludhiana, Punjab)
(5) Smt. Shveta Kaushan wife of Sh. Vimal Kaushal
3119, Mallbrid GECrescent Miss Sanga On TARIO
Canada Code L4 4T2C5 ( Canada) ..... Defendants
Date of Institution of suit :06.03.2009
Received in this Court :18.01.2014
Arguments heard on :24.03.2015
Date of Judgment/Order :25.03.2015
Decision :Suit dismissed with costs
J U D G M E N T
1. By this common judgment, following two suits are disposed off: (I) CS No. 19/14 titled Sh. Anil Kumar Sharma Vs Smt. Usha Sharma & Ors, and (II) CS No. 20/14 titled Sh. Anil Kumar Sharma Vs. Smt. Usha Sharma & Ors.
2. These two suits i.e. Suit No. 19/14 for cancellation of sale deed registered vide registration No. 2618, in Additional Book No. 1, Volume CS Nos. 19/14 & 20/14 page 3 of 15 Anil Sharma Vs. Usha Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. No. 523, on Pages 27 to 33 dated 12.08.2008 registered before the Sub RegistrarIVA, Shahdara, Delhi declaring the said sale deed as null and void and also declaring the disclaimer and receipt dated 06.08.1986 Registered before the SubRegistrar, Lal Quarter, Krishna Nagar, Delhi, and also for declaring the plaintiff and the defendant No. 1 to 3 as cosharer of the suit property and for permanent injunction and Suit No. 20/14 for partition of 1/4th share, possession of the share and permanent injunction for restraining the defendants, agents, attorneys, servants, associates etc. from selling, transferring or parting with possession or creating third party interest in the suit property was filed by the plaintiff Anil Kumar Sharma against the common defendants in both the suits. The suit for partition, possession and permanent injunction bearing No. 20/14 was filed initially and after filing of the WS by the defendants in the said suits, other suit for cancellation of documents was filed by the plaintiff against the defendant.
Brief facts for filing of the suits
3. Plaintiff Sh. Anil Sharma and defendant No. 1 to 3 are brothers and sisters. The father of the parties Sh. Kashmiri Lal has predeceased Smt. Janak Dulari Sharma. The suit property is property No. 1/7264, Shastri Park, East Gorakh Park, Shahdara which was owned and possessed by Janak Dulari Sharma, mother of the parties who expired on 26.01.09. As claimed by the plaintiff, Smt. Janak Dulari Sharma died without executing CS Nos. 19/14 & 20/14 page 4 of 15 Anil Sharma Vs. Usha Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. any Will and after her death, the plaintiff inherited rights in the suit property. As the defendants did not give the share of the plaintiff, suit No. 20/14 titled Anil Sharma Vs. Usha Sharma & Ors seeking decree of partition and possession of his share and also decree for permanent injunction against defendant No. 1 and 3.
When the defendant No. 1 to 3 filed their WS in the said suit for partition, it was disclosed that Smt. Janak Dulari Sharma during her life time executed a registered sale deed dated 12.08.08 in favour of defendant No. 1 Smt. Usha Sharma by virtue of which the entire suit property was sold and transferred to defendant No. 1. The plaintiff after coming to know this fact from the written statement filed the other suit bearing No. 19/14 titled Anil Sharma Vs. Usha Sharma & Ors. for cancellation of documents. Cancellation of documents i.e. Registered Sale Deed dated 12.08.08 executed by Smt. Janak Dulari Sharam in favour of Usha Sharma and for further a decree of declaration declaring the plaintiff and defendants as the coowners of the suit property. It is stated that in order to defeat the claim of the plaintiff, the defendants have used undue influence and got registered sale deed dated 12.08.08 executed by Smt. Janak Dulari Sharma in favour of defendant No. 1 which is a sham transaction without any consideration. The plaintiff has also prayed for declaration of declaring his disclaimer as null and void. As the sale deed was registered with subregistrar, the two CS Nos. 19/14 & 20/14 page 5 of 15 Anil Sharma Vs. Usha Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. defendants i.e. subregistrar and government of NCT of Delhi were also impleaded as defendants.
4. The defendants in reply to the claim of the plaintiff denied the allegations contending that deceased Smt. Janak Dulari Sharma during her life time out of her own free will sold the suit property to the defendant No. 1 and defendant No. 1 is in exclusive possession of the suit property. The defendant further claimed that this suit is not maintainable and is barred by limitation as the plaintiff has claimed cancellation of disclaimer deed dated 06.08.1986; this suit is liable to be dismissed being filed without any cause of action. The relationship between the parties is admitted along with ownership of Smt. Janak Dulari Sharma in respect of the suit property. The defendants further denied rest of the material contentions of the plaintiff in the plaint and prayed to dismiss both the suits being without any ground. 5 Plaintiff filed replication to the written statement of the defendants denying the contents therein and reiterated the facts stated in the plaint.
6. Vide order dated 24.02.2011, following issues were framed in suit No. 19/14 & 20/14 : ISSUES IN SUIT NO. 19/14: (I) Whether the plaintiff is entitled to decree of partition and possession of 1/4th share in respect of property bearing No. 1/7264, Shastri Marg, Eash Gorakh Park, Shahdara, Delhi built on 71 Sq. Yards of land? OPP CS Nos. 19/14 & 20/14 page 6 of 15 Anil Sharma Vs. Usha Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. (II) Whether the plaintiff is entitled to decree for permanent injunction as prayed? OPPP (III) Whether the plaintiff is estopped from filing the present suit in view of disclaimer deed dated 06.08.1996? OPD1D2 (IV) Whether the suit of plaintiff is maintainable as against the defendants? OPD (V) Whether the suit of plaintiff has been properly valued for the purposes of Court fee and jurisdiction? OPD (VI) Relief.
ISSUES IN SUIT NO. 20/14: (I) Whether the plaintiff is entitled to decree for cancellation of sale deed dated 12.08.2008 in respect of property bearing No. 1/7264, Shastri Park, Eash Gorakh Park, Shahdara, Delhi built on 71 Sq. yards of land? OPP (II) Whether the plaintiff is entitled to declaration as coowners of property bearing No. 1/7264, Shastri Park, Eash Gorakh Park, Shahdara, Delhi built on 71 Sq. yards of land? OPP (III) Whether the plaintiff is entitled for declaration for declaring disclaimer and receipt dated 06.08.1986 as prayed for ? OPP (IV) Whether the plaintiff is barred for injunction ? OPP (V) Whether the suit of the plaintiff is barred on the principle of CS Nos. 19/14 & 20/14 page 7 of 15 Anil Sharma Vs. Usha Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. estoppal? OPD1D2 (VI) Whether the suit of the plaintiff is barred by limitation ? OPD1 (VII) Relief
7. As observed, after framing of the issues both suits were consolidated and clubbed together vide order dated 25.05.2011 for the purposes of leading evidence and civil suit No. 19/14 was treated as the leading case for deciding both the matter. Further, a preliminary issue was framed in the first suit to the affect that: Whether the suit of the plaintiff would be maintainable in view of execution of disclaimer deed dated 06.08.1986 by the plaintiff ? The said issue was reiterated as issue No. 5 in suit No. 19/14 and was treated as preliminary issue. The evidence was recorded accordingly in the said preliminary issue and the case was fixed for DE.
8. The defendant No. 1 filed her affidavit by way of evidence Ex. DW1/A and examined herself as DW1 in support of her contentions. The witness has reiterated the averments as mentioned in the WS and also proved the relevant documents i.e. Death Certificate of Balinder Singh dated 04.10.2011 Ex. DW1/1, Cash Receipt dated 06.08.86 Ex. DW1/2, Disclaimer Deed Ex. DW1/3, Registered Sale Deed Ex. DW1/4 and Written Statement Ex. DW1/5.
The defendant No. 2 also filed her affidavit by way evidence Ex. DW2/A and was examined as DW2 who deposed nothing but as deposed CS Nos. 19/14 & 20/14 page 8 of 15 Anil Sharma Vs. Usha Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. by DW1.
Other witness Amrit Prakash, husband of defendant No. 3 examined himself as DW3. As no other witness remains to be examined on behalf of defendant DE was closed.
9. The plaintiff examined himself as PW1 vide affidavit Ex. PW1/A and deposed regarding the site plan Ex. PW1/1, plaint Ex. PW1/2, Legal Notice Ex. PW1/3 and Postal Receipts, UPC, Returned Envelop Ex. PW1/4 to Ex. PW1/11. The witness has deposed regarding many complaints but the originals were not produced.
Other witness Smt. Usha Nagpal, neighbour of the plaintiff was examined as PW2 vide affidavit Ex. PW2/A by the plaintiff. The PE was thereafter closed.
10. I have heard the Ld. Counsel for the parties and gone through the written submissions filed on behalf of the plaintiff and defendant No. 1 &
2. I have also gone through the judgments relied on behalf of defendant No. 1 & 2 reported as : (1) 1997 ALL. L. J. 759 (2) AIR 1994 Supreme Court 853 (3) 2007 (4) SCJ 40
11. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial CS Nos. 19/14 & 20/14 page 9 of 15 Anil Sharma Vs. Usha Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability"
would serve the purpose for obtaining a decree".
12. Section 101 of the Evidence Act, 1872 defines " burden of proof"
CS Nos. 19/14 & 20/14 page 10 of 15 Anil Sharma Vs. Usha Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn.
13. Both the suits pertained to the same property. The ownership of Smt. Janak Dulari is not denied. The parties led their evidence as per the averments in the pleadings. As observed, the plaintiff has made allegations against the defendants. It is further observed that the testimony of the CS Nos. 19/14 & 20/14 page 11 of 15 Anil Sharma Vs. Usha Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. plaintiff is further beyond pleadings and accordingly cannot be considered. No Will is at all produced or proved by the plaintiff, executed by her mother, if any in his favour and mere oral contentions is not sufficient.
14. The issue to be adjudicated is remained regarding the non maintainability of the suits filed by the plaintiff against defendants in view of execution of disclaimer deed dated 06.08.86 by the plaintiff. I have gone through the said receipt executed by the plaintiff for Rs. 40,000/ dated 06.08.86 along with Disclaimer Deed dated 06.08.86 which is registered. The defendant No. 1 has deposed regarding the relevant documents and her testimony regarding the execution of the receipt and disclaimer deed dated 06.08.86 by the plaintiff remained unimpeached and uncontroverted in one way or the other. The plaintiff during his crossexamination admitted that he has taken separate accommodation from his parents in 1988 and he has no cordial relations with the sisters i.e. defendants. The plaintiff further failed to prove any of the complaints made by his parents or mother against the defendants regarding illtreatment. As mentioned, no Will was produced or proved by the plaintiff. Though the plaintiff has denied the execution of receipts and disclaimer deed dated 06.08.86 but during cross examination admitted his signature on the same. The testimony of the plaintiff was impeached in this respect and there is not reliable. Examining the case of the plaintiff on the basis of preponderance of probabilities, the CS Nos. 19/14 & 20/14 page 12 of 15 Anil Sharma Vs. Usha Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. defence of the defendants appears to be plausible, consistent, reasonable as well as possible. The testimony of the plaintiff was further shattered during his crossexamination regarding the misplace of the documents and the execution of receipt and disclaimer deed dated 06.08.86 is proved by the defendants. The testimony of the PWs is mainly in the hearsay evidence. The defendants accordingly proved this issue and discharge the onus in their favour.
15. The ratio of judgment reported as 1982 (1) RCR 637 is squarely applicable in the facts of this case. Further, as held in Subhra Mukharjee Vs. Bharat Coking Coal Ltd., AIR 2000 SC 1203, the party which makes the allegation must prove it. The plaintiff failed to prove his case and discharge the onus. Undisputedly, the burden lies on the plaintiff to establish such facts.
16. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a CS Nos. 19/14 & 20/14 page 13 of 15 Anil Sharma Vs. Usha Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
17. In view of the testimony of the witnesses, documents on record, the pleadings of the parties and examining the case of the plaintiff on the basis of preponderance of probabilities, it is established that the plaintiff failed to prove the case and discharge the onus. This court does not find any merit or substance in the suit of the plaintiff. This court is of the considered opinion CS Nos. 19/14 & 20/14 page 14 of 15 Anil Sharma Vs. Usha Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. that the suits of the plaintiff is liable to be dismissed and plaintiff is not entitled for any relief as prayed in the suit.
Relief: In view of aforesaid discussion and findings, this court of the considered view the plaintiff is not entitled for any relief as prayed in the suits. The suits of plaintiff is accordingly dismissed with costs. Copy of this judgment be also placed in case file civil suit No. 19/14 & 20/14. Decree sheet be drawn accordingly.
File be consigned to record room.
Announced in open Court on this 25th day of March, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi CS Nos. 19/14 & 20/14 page 15 of 15 Anil Sharma Vs. Usha Sharma & Ors.