Delhi District Court
Vesheshwar Nath Dewan vs Vishwa Nath Dewan on 12 March, 2025
IN THE COURT OF MS GOMA DABAS GUPTA
DISTRICT JUDGE-06 : WEST DISTRICT :
TIS HAZARI COURTS : DELHI
CS NO.7664/16
CNR NO.DLWT01-000001-1990
SH VASHESHAR NATH DEWAN
(DECEASED, through LRs)
(a) Smt Kusum Dewan
W/o Late Sh Vasheshar Nath Dewan
( the suit stands dismissed as withdrawn vide
order dated 03.05.2006)
(b) Smt Nisha Sawhney
W/o Sh Rakesh Sawhney
R/o I-41, Jangpura Extension
New Delhi-110014
.........PLAINTIFF
VERSUS
SH VISWA NATH DEWAN
(DECEASED, through LRs)
(a) Smt Pushpa
(her name already deleted vide order dated 07.11.2013)
(b) Sh Bhushan Dewan
S/o late Sh Vishwa Nath Dewan
R/o I-41, Ground Floor,
Jangpura Extension, New Delhi-110014
(c) Smt Usha Kapoor
W/o Sh Y P Kapoor
R/o I-41, Ground Floor,
Jangpura Extension,
New Delhi-110014
.......DEFENDANTS
CS NO.7664/16 & CS No. 7665/16 Page No. 1 /94
DATE OF INSTITUTION : 25.10.1990
DATE RESERVED FOR JUDGMENT : 06.03.2025
DATE OF JUDGMENT : 12.03.2025
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AND
CS NO. 7665/16
CNR NO. DLWT01-000002-2003
1. KUSUM DEWAN
W/o Late Sh Vasheshar Nath Dewan
( the suit stands dismissed as withdrawn vide
order dated 03.05.2006)
2. Smt Nisha Sawhney
W/o Sh Rakesh Sawhney
R/o I-41, Jangpura Extension
New Delhi-110014
..........PLAINTIFF
VERSUS
SH VISWA NATH DEWAN
(DECEASED, through LRs)
(a) Smt Pushpa
(her name already deleted vide order dated 07.11.2013)
(b) Sh Bhushan Dewan
S/o late Sh Vishwa Nath Dewan
R/o I-41, Ground Floor,
Jangpura Extension, New Delhi-110014
(c) Smt Usha Kapoor
W/o Sh Y P Kapoor
R/o I-41, Ground Floor,
Jangpura Extension,
New Delhi-110014
..........DEFENDANTS
CS NO.7664/16 & CS No. 7665/16 Page No. 2 /94
DATE OF INSTITUTION: 25.03.2003
DATE RESERVED FOR JUDGMENT: 06.03.2025
DATE OF JUDGMENT: 12.03.2025
JUDGMENT
1. Vide this common judgment, I shall decide Suit No. 7664/16 for possession and mesne profits filed by the plaintiff against the defendant titled as "Sh. Vasheshar Nath Dewan Vs. Sh. Vishwa Nath Dewan" (hereinafter referred to as 'main case') and Suit No. 7665/16 for recovery titled as "Smt. Kusum Dewan and Anr. Vs. Sh. Vishwa Nath Dewan" (hereinafter referred to as 'connected case').
Plaintiff's Case
2. The brief facts as per the plaintiff's case are :
(i) That the plaintiff and the defendant were real brothers and sons of Late Sh. Dina Nath Dewan. That the plaintiff and the defendant are deceased now and are represented by their respective legal representatives.
(ii) That the plaintiff was allotted Plot No. I-41, Jangpura Extension, New Delhi (hereinafter referred to as 'suit property') by the Ministry of Rehabilitation in the year 1950-51. The plaintiff started construction of the said plot after taking possession and constructed 2 ½ storey house on the said plot out of his own funds and savings which got completed during the period 1951-1955.CS NO.7664/16 & CS No. 7665/16 Page No. 3 /94
(iii) That late Sh. Dina Nath Dewan, father of the plaintiff got some blank papers signed from the plaintiff and on the said blank papers got forged and fabricated agreement dated 18.09.1957 giving share in the property to the defendant.
(iv) That the father of the parties died in the year 1973 and during his life time, the plaintiff and the defendant were residing jointly with their parents on the first floor of the suit property.
The ground floor of the suit property was occupied by a tenant and the plaintiff used to collect rent from the tenant being the owner and landlord of the premises. The tenant vacated the ground floor of the suit property in the year 1972 and upon the death of the father of the parties, the defendant shifted to the ground floor of the suit property as a gratuitous licensee by way of permissive possession out of natural love and affection. The plaintiff continued to be in possession of first floor and second floor of the suit property.
(v) That the plaintiff has been making payment of house tax to the Corporation on the basis of title of suit property in favour of plaintiff.
(vi) That on 30.12.1985, a Lease Deed has been executed in favour of the plaintiff on behalf of President of India by way of which the plaintiff became absolute owner of the suit property.
(vii) That the defendant continued to live in the ground floor of the suit property. However, the intention of the defendant CS NO.7664/16 & CS No. 7665/16 Page No. 4 /94 became dishonest and he filed a suit against the plaintiff for declaration and partition of the suit property bearing Suit No. 2097/1989. It is pertinent to mention that during the pendency of the present suit, the said Suit No. 2097/1989 has been decided in the year 2000 vide order dated 15.07.2000.
(viii) That the defendant is an unauthorised occupant of the suit property and hence the present suit has been filed for possession and mesne profits.
(ix) The wife and the daughter of the plaintiff have filed the connected case No.7665/16 after the demise of the plaintiff for damages @ Rs. 4000/- per month for a period w.e.f. 22.03.2000 to 21.03.2003 from the defendant.
Written Statement
3. The written statement was filed by the defendant in the present matter which was later on being amended, as per law. According to the written statement, the defendant has prayed for dismissal of the plaintiff's suit and awarding of special compensatory cost u/s 35 A of CPC in favour of defendant. Defendant's case in brief as follows :
(i) The defendant has taken a preliminary objection that since he had filed a suit for partition against the plaintiff, the present suit was liable to be stayed u/s 10 of CPC.
(ii) That the construction of the suit property was raised from the funds of father of the parties and also that part contribution of CS NO.7664/16 & CS No. 7665/16 Page No. 5 /94 funds towards ground rent was also made by the father of the parties.
(iii) The deceased plaintiff had written a letter dated 01.11.1957 to the Housing and Rent Officer, Delhi Estate, Delhi and thereby requested adjustment of the amounts on ground rent to be recovered against claimed compensation due to his father which was replied by the office of the Settlement Commissioner in the name of father of the parties vide letter dated 01.10.1960 thereby requesting adjustment of the amount of Rs. 508.06 in respect of ground rent of the suit property allotted jointly to his sons i.e. the deceased plaintiff and the deceased defendant vide letter dated 24.08.1955 by Ministry of Rehabilitation. It is submitted by the defendant that since the construction of the suit property was raised from the funds of parents of the parties and that the ground rent was adjusted from the claim compensation due to the father of the parties, the suit property became ancestral property of the parties thereby making the defendant a co-owner of the suit property.
(iv) The defendant has also submitted that the suit of the plaintiff is barred u/s 53 A of Transfer of Property Act.
(v) It is further submitted by the defendant that the wife of the deceased plaintiff, Smt. Kusum Dewan, moved an application before this Court thereby withdrawing her power of attorney in favour of Rakesh Sawhney and for the attorney executed in favour of her Counsel Sh. Y.P. Ahuja vide CS NO.7664/16 & CS No. 7665/16 Page No. 6 /94 application dated 31.05.2004 whereby she also admitted that the defendant is co-owner in the suit property. Subsequent to that, Smt. Nisha Sawhney, daughter of deceased plaintiff, moved an application under Order XXII Rule 10 of CPC thereby informing that Smt. Kusum Dewan had relinquished her share in the suit property in favour of Ms. Nisha Sawhney vide Relinquishment Deed dated 31.03.2004. It is submitted by the defendant that the families of the parties were enjoying the suit property being the co-owners, but after the marriage of Smt. Nisha Sawhney, daughter of the deceased plaintiff, the disturbance in the family was created by son-in-law of the deceased plaintiff in order to unlawfully grab the suit property.
(vi) The defendant has also submitted that Smt. Nisha Sawhney and her husband played a fraud and got prepared fabricated documents in respect of the suit property including the land underneath from Smt. Kusum Dewan without permission from the Court.
(vii) It is submitted by the defendant that in terms of the registered Agreement dated 18.09.1957, the deceased plaintiff and the defendant are entitled to 50% share each in the suit property which was also acted upon by the parties.
4. In the written statement filed by the defendant in the connected case, the defendant has prayed for dismissal of plaintiff's suit on the ground that the suit filed by the plaintiffs is not CS NO.7664/16 & CS No. 7665/16 Page No. 7 /94 maintainable as the defendant is the co-owner in the suit property to the extent of 50% share in the suit property and is thus not liable to pay any damages. The defendant has taken other defences which are mentioned herein above in the main suit and has prayed for dismissal of the connected case.
5. Plaintiff has filed replication to the Written statement of defendant in the main case file and also in the connected case wherein she has reiterated the contents of the plaint.
6. Upon completion of pleadings, issues were framed on different dates and the same have been now consolidated and renumbered as follows:
1. Whether the plaintiff is owner of the property in dispute? OPP
2.Whether the plaintiff is entitled to a decree of possession as prayed? OPP
3. Whether the defendant is co-owner of the property in dispute in view of letter issued by Ministry of Urban, Government of India dated 24/08/1955? OPD
4. Whether the suit is filed without any cause of action? OPD
5. Whether the registered agreement dated 18/09/1957 is no agreement in the eyes of law and is fabricated document as alleged? OPP
6. Whether the suit property bearing number I-41, Jangpura Extension , New Delhi is ancestral property of the parties as stated in the written statement? OPD
7. Whether the suit is barred under the provision of section 53 A of transfer of property act? OPD
8. Whether the suit is not maintainable in view of withdrawal of the same by the plaintiff no 1 Smt Kusum Dewan vide order dated 03/05/2006 of this court? OPD CS NO.7664/16 & CS No. 7665/16 Page No. 8 /94
9. Whether the plaintiff is entitled to recover the Mesne profits, if so, at what rate and to what amount? OPP
10. Relief.
7. In the connected case, the following issues have been framed :-
1. Whether the plaintiff is owner of the property in dispute?
2. Whether the defendant is co-owner of the property in dispute in view of letter issued by Ministry of Rehabilitation, Government of India dated 24/08/1955?
3. Whether the suit is without any cause of action?
4. Whether the agreement dated 18/09/1957 is a fabricated document?
5. Whether the plaintiff is entitled to the relief claimed?
6. Relief.
Plaintiff's Evidence
8. The plaintiff has examined 3 witnesses.
(i) PW1 is Sh Prem Singh, Inspector, house tax Department who brought the summoned record of the suit property.
(ii) PW-2 Sh Dinesh Sharma, Clerk Khatri /Urban Cooperative Bank, Darya Ganj Branch, New Delhi, Ansari Road. (summoned witness). He has brought original lease deed of property no. I-41, Jangpura Extension, New Delhi. Certified copy of said lease deed is Ex.PW2/1.
(iii) PW 3 is Shri Rakesh Sawhney who is the power-of-attorney holder on behalf of LRs of the deceased plaintiff, who is the son in law of the deceased plaintiff no.1 and husband of plaintiff no.2. He was examined by way of affidavit Ex.P-3. He has relied CS NO.7664/16 & CS No. 7665/16 Page No. 9 /94 upon the following documents:-
i) GPA on behalf of plaintiff in favour of deponent/PW3, same is Ex.PW3/1 ii) Site plan is Ex.PW3/2
iii) Certified copy of order dated 15.07.2000, passed by Bimla Makin, the then ADJ is Ex.PW3/3
iv) Copy of plaint in suit no. 2097/1989 is Ex.PW3/4,
v) Letter dated 06.03.2012 is Ex.PW3/11.
PW-3 tendered his additional evidence by way of affidavit as Ex.PW3/2 on 14.02.2024. He has further relied upon following documents:-
i) Photocopy of order dated 23.08.1999 of Hon'ble High Court of Delhi is Ex.PW3/10
ii) letter addressed to Sh Vasheshar Nath Dewan by MCD is Ex.PW3/11 (OSR)
iii) site plan sanctioned by MCD is Ex.PW3/12 (also exhibited as Ex.DW1/DX2)
iv) Ex.PW3/14 is relinquishment deed dated 31.03.2004
ii) Conveyance deed dated 25/02/2007 executed in favour of Ms Nisha Sawhney is Ex.PW3/15 (OSR) During cross examination of PW-3, following documents were also exhibited:-
i) Legal opinion given by officers of L & DO dt 30.11.2000 is Ex.PW3/DX1 CS NO.7664/16 & CS No. 7665/16 Page No. 10 /94
ii) Agreement dated 18.09.1957 in URDU is Ex.PW3/DX2 (also mark DB), also as Ex.DW2/1 and Ex.DW1/3
iii) Urdu document in the name of Dina nath Ex.PW3/DX3
iv) Letter dated 01.11.57, letter to Housing and Rent officer and letter dated 01.10.1960 to department Ex.PW3/DX4, Ex.PW3/DX5 and Ex.PW3/DX7
v) Ex.PW3/DX6 is letter issued by Ministry of Rehabilitation to Sh Deena Nath Dewan
vi) Letters for allotment of plot are Ex.PW3/DX8 to Ex.PW3/DX10
vii) Ex.PW3/DX11 is final notice dated 16.01.1979
viii) Rent deeds Ex.PW3/DX12,
ix) Document Ex.PW3/DX13 is letter dated 31.10.1955
x) Account containing alleged construction written by father of defendant, Ex.PW3/DX14, colly and the diary alongwith translated copy (inadvertently mentioned as Ex.PW3/14)
xi) Ex.PW3/DX15 are documents ie passbook of Deena Nath and other two documents
xii) Ex.PW3/DX16 is certificate dated 03.08.2016 Defendant's evidence
9. The defendant has examined total 9 witnesses.
DW1, Shri Bhushan Dewan, son of the deceased defendant was CS NO.7664/16 & CS No. 7665/16 Page No. 11 /94 examined as DW-1 whose evidence by way of affidavit is Ex.DW1/A. He has relied upon 47 documents where are mentioned below:-
Ex.DW1/1 is letter dated 16.10.1947, Ex.DW1/2 is letter dated 24.08.1955 (DE), Ex.DW1/4 is lease deed dated 25.10.1953, (also as Mark DE) Ex.DW1/5 is lease deed dated 01.03.1954 (Mark DI), Ex.DW1/6 is lease deed dated 03.01.1962 (mark DG), Ex.DW1/7 is lease deed dated 05.01.1963 (Mark DH), Ex.DW1/8 is lease deed dated 01.04.1963 (also as mark DC) Ex.DW1/9 is lease deed dated 02.07.1963, (also as mark DF) Ex.DW1/10 is lease deed dated 27.11.1963, (also as mark DD) Ex.DW1/11 is letter dated 01.10.1960, Ex.DW1/15 are the MCD receipts, Ex.DW1/16 is Form-B, receipt of House tax receipt.
The original registered agreement dated 18.09.1957 which was already Ex PW3/DX2 and the same is Ex DW1/3 in the evidence affidavit. Similarly, certificate of agricultural land distribution and khatauni as well as conveyance deed dated 22.07.1952 of the land was already Ex PW3 / DX15 (Colly) and the same is also Ex DW1/12 (colly ) in the evidence affidavit. The copies of three diaries were already Ex PW3/14 (colly) and the same is also Ex DW1/13 (colly) in the evidence affidavit. The passbook of Imperial Bank of India was already Ex PW3/DX15 (colly) and the same is also Ex DW 1/14 (colly) in the evidence affidavit. The notice issued by the Wealth Department to the deceased defendant is Ex DW1/17(colly) running into 13 pages. The copy CS NO.7664/16 & CS No. 7665/16 Page No. 12 /94 of appeal is Ex DW1/18 and the report/assessment order of the Wealth / Income tax Department is Ex DW1/19 (running into two pages). The valuation report of the property in question is Ex DW1/20 (colly) (running into 11 pages). Copy of complaint dated 07.03.2001 made to the Cabinet Secretariat / public grievance cell is Ex.DW1/21. Copy of complaint dated 07.03.2001 made to Central vigilance commissioner is Ex DW1/22. Copy of complaint dated 29.03.2000 made to Urban Development Minister is EX DW1/23. Copy of complaint dated 10/22.04.1985 made to Commissioner MCD is Ex.DW1/24 (consist of 2 pages). Copy of complaint dated 18.06.1985 made to Deputy Assessor and Collector and MCD is Ex.DW1/25(consist of 2 pages) (inadvertently on the document it is mentioned as Ex.DW1/26) Copy of complaint dated 23.12.1985 made to the Commissioner, MCD is Ex.DW1/26(consist of 2 pages). Copy of complaint dated 23.12.1985 made to Lt. Governor Delhi is Ex DW1/27. Copy of complaint dated 07.02.1986 made to assessor and collector is Ex.DW1/28. Ex.DW1/29 in my affidavit is de-exhibited as the same is repetition of Ex DW1/28. Letter dated 25.07.1985 written by deceased defendant to L&DO is Ex DW1/30, the letter dated 25.10.1985 written by deceased defendant to L&DO is Ex.DW1/31, The letter dated 15.09.1987 written by deceased defendant to Ministry of Urban Development is Ex DW1/32, The letter dated 15.09.1987 written by deceased defendant to L&DO CS NO.7664/16 & CS No. 7665/16 Page No. 13 /94 is Ex DW1/33. The letter dated 06.12.1999 written by deceased defendant to L&DO is Ex DW1/34. The letter dated 15.02.2000 written by deceased defendant to L&DO is Ex DW1/35. The letter dated 19.05.2000 written by deceased defendant to L&DO is Ex DW1/36. The letter dated 10.07.2000 written by deceased defendant to Dr Rajesh Kumar, L&DO is Ex DW1/37. The letter dated 09/14.08.2000 written by deceased defendant to L&DO is Ex DW1/38(consist of 2 pages). The letter dated 06.09.2000 written by deceased defendant to the O/o CVC is Ex DW1/39(consist of 4 pages). The letter dated 30.08.2000 received by deceased defendant from Govt of India, Cabinet Secretariat, Public grievance is Ex DW1/40. The letter dated 24.08.2000 written by deceased defendant to Hon'ble Minister of Urban Development, Govt of India is Ex DW1/41(consist of 3 pages). Copy of letter 30.11.2000 written by Sh S S Chahar , Additional Legal Advisor is EX DW1/42(consist of 2 pages) (the present document is on the record of Case title as Smt Kusum Diwan Vs Vishwanath Diwan connected with the present case) . The notice dated 21.12.1989 issued by Advocate Sh B B Gupta to the L&DO is Ex DW 1/43(consist of 2 pages) (the present document is on the record of Case title as Smt Kusum Diwan Vs Vishwanath Diwan connected with the present case). In response of Ex DW1/43 a letter was sent by Sh Keshav Das on 02.07.1997 to deceased defendant, same is Ex DW1/44, Notice dated 06.12.2000 issued to both deceased plaintiff and deceased CS NO.7664/16 & CS No. 7665/16 Page No. 14 /94 defendant is Ex DW1/45. Copy of the structure Engineer report dated 03.08.2016 was already Ex PW3/DX16 and the same is also Ex DW1/46 in my affidavit. Photographs consist of 40 pages is Ex.DW1/47(colly)" receipt of payment of house tax is Ex.DW1/DX1, colly, sanctioned plan is Ex.DW1/DX2 and letter dated 26.08.2003 issued by L& DO, Ex.DW1/DX3.
10. DW2, Shri Sevajit is the record attendant, from Department of Delhi Archives who brought the original registered agreement dated 18/09/1957, same is Ex.DW2/1.
11. DW3 Shri Devender Prasad Singh is LDC, SDMC property tax Department, Assessment and Collection Department who brought the summoned record that is, house tax record pertaining to the suit property as Ex.DW3/1 (colly, 4 pages, OSR).
12. DW4, Sh B Pal, Consultant Land and Development Office, Ministry of Housing and Urban Development who brought various correspondence letters between the parties and the concerned department. Same are mentioned herein below:-
The notice dated 21.12.1989 sent by Sh BB Gupta, Advocate, is Ex DW4/1 (Consisting of 2 pages- OSR), same was already exhibited as EX DW1/43. The letter dated 30.08.2000, copy of same is Ex.DW4/2 (OSR), same was already exhibited as CS NO.7664/16 & CS No. 7665/16 Page No. 15 /94 Ex.DW1/40. The letter dated 24.08.2000, copy of same is Ex.DW4/3 (consisting of three pages-OSR), same was already exhibited as Ex.DW1/41. The letter dated 15.09.1987, copy of same is Ex.DW4/4 (OSR), same was already exhibited as Ex.DW1/32. The letter dated 06.12.1999, copy of same is Ex.DW4/5 (OSR), same was already exhibited as Ex.DW1/34. The letter dated 09/14.08.2000, copy of same is Ex.DW4/6 (consisting of two pages - OSR)., same was already exhibited as Ex.DW1/38. The letter dated 13.12.2000, copy of same is Ex.DW4/7 (OSR), the letter dated 15.09.1987, copy of same is Ex.DW4/8 (OSR), same was already exhibited as Ex. DW1/33. The letter dated 15.02.2000, copy of same is Ex. DW4/9 (OSR). Same was already exhibited as Ex.DW1/35. The letter dated 19.05.2000, copy of same is Ex.DW4/10 (OSR), same was already exhibited as Ex.DW1/36. The letter dated 10.07.2000, copy of same is Ex.DW4/11 (OSR), same was already exhibited as Ex.DW1/37. The letter dated 29.03.2001, copy of same is Ex.DW4/12 (OSR), same was already exhibited as Ex.DW1/23.
The letter dated 06.12.2000, copy of same is EX DW4/13 (OSR), same was already exhibited as Ex.DW1/45. The letter dated 21.12.2000, copy of same is Ex.DW4/14 (consisting of two pages OSR). The letter dated 27.12.2000, copy of same is Ex.DW4/15 (consisting of two pages - OSR). The letter dated 19.01.2001, copy of same is Ex.DW4/16 (OSR). The letter dated 22.02.2001, copy of same is Ex.DW4/17 (OSR). The letter dated CS NO.7664/16 & CS No. 7665/16 Page No. 16 /94 07.08.2001, copy of same is Ex.DW4/18 (consisting of two pages-OSR). The letter dated 19.09.2001, copy of same is Ex.DW4/19 (consisting of two pages - OSR). The letter dated 07.11.2001, copy of same is Ex.DW4/20 (OSR). The letter dated 17.10.2001, copy of same is Ex.DW4/21 (OSR). The letter dated 19.11.2001, copy of same is Ex.DW4/22 (consisting of two pages-OSR). The letter dated 19.03.2002, copy of same is Ex.DW4/23 (OSR). The letter dated 26.08.2003, copy of same is Ex.DW4/24 (OSR). The letter dated 09.07.2003, copy of same is Ex.DW4/25 (consisting of two pages - OSR). The letter dated 03.09.2003, copy of same is Ex.DW4/26 (consisting of two pages-OSR). The letter dated 03.09.2003, copy of same is Ex.DW4/27(consisting of two pages - OSR). The letter dated 08.02.2000, copy of same is Ex.DW4/28 (OSR). The letter dated 01.12.2000 copy of same is Ex.DW4/29 (consisting of two pages
- OSR). Letter dated 09.11.1957, copy of same is Ex.DW4/30 (OSR). The letter dated 01.11.1957, copy of same is Ex.DW4/31 (OSR). The letter dated 31.10.1955, copy of same is Ex. DW4/32 (OSR). The letter dated 17.10.1955, copy of same is Ex.DW4/33 (OSR), same was already exhibited as EX DW3/DX10. The letter dated 24.08.1955, copy of same is EX DW4/34 (OSR), same was already exhibited as Ex.DW1/2. The letter dated 20/22.06.1953, copy of same is Ex.DW4/35 (OSR). Same was already exhibited as EX DW3/DX9.
CS NO.7664/16 & CS No. 7665/16 Page No. 17 /9413. DW5, Shri Narendra kumar, AZI from the office of Assessor and Collector house tax Department who brought the original letters of correspondence, which are as follows:-
The original letter dated 10-22.04.1985, attested copy of same is Ex.DW5/1 (OSR). The letter dated 18.06.1985 is Ex.DW5/2(OSR). The letter dated 23.12.1985 is Ex.DW5/3 (OSR) (objected to regarding the mode of proof). The letter dated 10.04.1985 is Ex.DW5/4 (OSR), The letter dated 07.02.1986 is Ex.DW5/5 (OSR). The acknowledgment dated 24.04.1985 is Ex.DW5/6 (OSR). The letter dated 07.02.1986 is Ex.DW5/7 (OSR). The original B form dated 01.04.1963 is Ex.DW5/8 (OSR) (2 pages back to back). The original ka - kha form dated 01.04.1966 is Ex.DW5/9 (OSR) (2 pages back to back).
He has also brought the letter issued by the Assistant Assessor and Collector, Central Zone dated 12.09.2018 which is Ex.DW5/10, as per the record vide letter dated 24.08.1955 the property was recorded in the name of Sh Vesheshwar Nath Dewan and Dewan Vishwanath".
14. DW6, Ms Renu Dhir is the neighbour of the defendant examined by way of affidavit Ex.DW6/A.
15. DW7, Shri Raghubeer, LDC, Ministry of Home affairs who brought the record titled as "handing over of Lahore shed."
CS NO.7664/16 & CS No. 7665/16 Page No. 18 /94same was Ex.DW7/A (inadvertently mentioned as Ex.PW7/A)
16. DW8 ,Thingnam Sanjiv, Archivist, National Archives of India brought a letter/certificate issued by Shri T Hussain, deputy director of archives, same is Ex.DW8/A.
17. DW9, Shri K K Sikka who is the relative of the deceased defendant examined by way of affidavit Ex.DW9/A. Arguments
18. The main suit is the oldest matter of this court and the connected case was also filed in the year 2003. I have heard the arguments made by both the sides at length. The plaintiff has argued that since lease deed dated 30/12/1985 is in his favour which subsequently resulted in conveyance deed dated 26.02.2007, the plaintiff is the owner of the suit property and is entitled to the relief of possession. The plaintiff has also argued that in a partition suit filed by the defendant herein against the plaintiff herein, the court had relied upon the said lease deed and rejected the plaint under Order VII Rule 11 of CPC. Per contra, the defendant has argued that the plaintiff is not the sole owner of the suit property and rather, the defendant is a co- owner in the suit property. The defendant has placed reliance upon letter dated 24/08/1955, which resulted in family settlement dated 18/09/1957 and has argued that the said family CS NO.7664/16 & CS No. 7665/16 Page No. 19 /94 settlement is binding on both the parties. The defendant has further argued that the construction money for construction of the suit property was given by the father of the parties and also by the defendant. The defendant has further argued that there are house tax receipts which clearly show the name of the defendant as owner of the suit property. The defendant has also argued that the lease deed dated 30/12/1985 was obtained by the deceased plaintiff fraudulently and has relied upon various correspondence letters between that the defendant and various government departments. The defendant has placed reliance upon huge number of judgments which are contained in 2 files and the same are discussed hereinbelow serial -wise, as per compilation of the defendant:
(1.) Tara Sikand Atwal vs. Viraj Sikand and Ors. (10.04.2019 - DELHC) This case pertains to cancellation of relinquishment deed and consequential relief of partition. The defendant stated that family settlement has been given a special status and the same is not be disturbed with a view to preserve peace and harmony of the family. The facts and relief claimed is different from the present case at hand and hence no reliance can be placed.
(2.) Thulasidhara and Ors. vs. Narayanappa and Ors. (01.05.2019
- SC) This was a suit for declaration and permanent injunction. The CS NO.7664/16 & CS No. 7665/16 Page No. 20 /94 defendant stated that keeping in view of the facts ad circumstances of the case the family settlement was not required to be registered. The main document in issue only pertained to list of properties partitioned and court held that the same is not required to be registered. Hence no reliance can be placed.
(3.) Chander Kanta Singhal and Ors. vs. Kapadia Exports and Ors. (11.10.1996 - DELHC) This was a suit for possession and mesne profits. The defendant stated that validity of notice cannot be challenged once it is proven that the address on the said notice was correct and the notice was sent by adopting a proper method. The whole matter revolves around validity of termination notice and hence the same is of no use in the facts of present case.
(4.) Ramchandra Sakharam Mahajan vs. Damodar Trimbak Tanksale (D) and Ors. (09.07.2007 - SC) This was a suit for declaration of joint title and mandatory and permanent injunction. The defendant stated that burden to establish title is always on the party asserting it and cannot rely on the weakness of defence. In this case the court ultimately remanded the suit back to trial court for fresh trial, hence the same is of no use in present case.
(5.) Devi Sahai and Ors. vs. Ram Phal Bansal and Ors. Delhi CS NO.7664/16 & CS No. 7665/16 Page No. 21 /94 High Court 1996 (ORDER) The court decided upon an application under Order XIV Rule 5 CPC. The defendant stated that once the signatures are admitted the party so admitting the signatures cannot then deny the document to be false or fabricated. The facts upon which court decided is different from the facts in present case and hence reliance cannot be placed.
(6.) Jagdish Chandra Ghose and Ors. vs. Basant Kumar Bose and Ors. (06.04.1963 - PATNAHC) The defendant relied on the point of valuation/ ejectment of licensee. The principal question which arose for consideration in this case was with regard to basis of valuation of a suit for ejectment of a licensee when he continued to live in licensed premises in spite of termination of his licence. Hence it is of no avail in the factual matrix of present case.
(7.) Sisir Kumar Dutta and Ors. vs. Susil Kumar Dutta (29.06.1960 - CALHC) The defendant relied on the point of valuation/ ejectment of licensee. This suit is again related to valuation of suit against licensee. Hence no reliance can be placed.
(8.) Nawal Kishore vs. State (02.11.1982 - DELHC) The defendant stated that burden of proof of fraud is always on CS NO.7664/16 & CS No. 7665/16 Page No. 22 /94 party asserting it. A vague plea of undue influence or fraud would be of no avail. This is a criminal matter which talked about burden of proof on accused. Hence no bearing in the present case.
(9.) Rite Approach Group Ltd. vs. Rosoboronexport (16.03.2007
- DELHC) This was an appeal against order of Section 9 of Arbitration and Conciliation Act. The defendant stated that claim of property purchased entirely by one person or jointly by a hindu family is to be answered by the person asserting such a claim and not be power of attorney holder. Hence no bearing in the present case.
(10.) Janki Vashdeo Bhojwani and Ors. vs. Indusind Bank Ltd. and Ors. (06.12.2004 - SC) This matter pertains to decision by DRT. The facts of the decision differ from the facts in the present case and hence of no avail in the present matter. The defendant stated that acts done by a power of attorney holder would not include deposing instead of the principal and also on aspect of no source of income for making contribution in purchasing of property. This matter pertains to attachment of property in execution of wife of a person against whom decree in recovery suit was passed.
(11.) Janki Vashdeo is repeated here CS NO.7664/16 & CS No. 7665/16 Page No. 23 /94 (12.) A.C. Narayanan and Ors. vs. State of Maharashtra and Ors. (13.09.2013 - SC) This matter pertains to power of attorney holder and a complaint under Section 138 NI Act.
Para 18 of judgment- "The power-of-attorney holder does not have personal knowledge of the matter of the Appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal."
Even this judgement is not of much avail as this matter is regarding a criminal liability whereas the present suit is a simple civil suit for possession.
It is pertinent to mention that the ratio of the judgements at serial No. 10, 11 and 12 relied upon by the defendant is misconceived. The above said judgement is nowhere say that a power-of- attorney holder cannot depose on behalf of his principal. It is settled or that a power-of-attorney holder can certainly depose provided he has personal knowledge of the facts and circumstances of the case. These judgements have been placed on record in respect of PW3, who is the son-in-law of the deceased plaintiff who got married with the daughter of the deceased plaintiff 1980 and had personal knowledge of the case thereafter. Therefore he can certainly depose a facts which are within his knowledge. However, he cannot depose on the facts CS NO.7664/16 & CS No. 7665/16 Page No. 24 /94 which are not within his knowledge.
(13.) S. Kesari Hanuman Goud vs. Anjum Jehan and Ors. (10.04.2013 - SC) I have discussed the applicability of this judgement while discussing issue no. 1 below.
(14.) Hari Narain and Ors. vs. Bela Devi (16.07.1993 - DELHC) The defendant stated upon deemed admission of documents when no cross examination was done by the plaintiff. This was a petition under section 14(1)(b) of DRC Act and the same is of no use in the present case.
(15.) Vinod Kumar Dhall vs Dharampal Dhall 26.04.2018 Supreme court This case supports the case of plaintiff only and is discussed below with the findings on issue number 1.
(16.) Pappi vs. Ramesh Kumar (28.02.2017 - DELHC) :
MANU/DE/0575/2017 The defendant stated that a person holding property in trust on behalf of his brother or other family members cannot be granted decree of possession by terming the possession of defendant as that of licensee. This matter was a suit for possession filed by a brother against another brother. In this the Plaintiff claimed CS NO.7664/16 & CS No. 7665/16 Page No. 25 /94 ownership on basis of unregistered, undated and photocopies of various documents like GPA, Will etc. The court ultimately held that none of the brother is having any title in the suit property but mere possessory rights. Hence the said judgment is not relevant as the facts of present matter are different from the said decision. The present case revolves around registered documents and hence this judgment is of no avail.
(17.) Bhagwan Dayal vs. Reoti Devi (04.09.1961 - SC) :
MANU/SC/0374/1961 The defendant stated that the general rule is every Hindu family is presumed to be a joint family unless the contrary is proven. Any other inference can only be drawn by direct evidence or by course of conduct. This was a suit for declaration and the matter largely touched upon the issue of res judicata and hence the same is of no use in the factual matrix of the case at hand.
(18.) Surendra Kumar vs. Phoolchand (Dead) through and Ors. (02.02.1996 - SC) The defendant stated that on point of whether property was joint family or not, It was found that consideration money for purchasing the property had been paid by the father of parties out of joint family funds and as such it was a joint family property. In this judgement, the property in question is a joint family property for which partition was sought. However, this CS NO.7664/16 & CS No. 7665/16 Page No. 26 /94 judgement cannot be used in the present case as the plaintiff's categorical case is that he is the owner of property wide lease deed.
(19.) Appasaheb Peerappa Chandgade vs. Devendra Peerappa Chandgade and Ors. (19.10.2006 - SC) The defendant stated that it is not open to any member to convert joint property into personal property by unilateral act. This was a suit for partition and the main dispute was whether the suit property was a joint family property or self-acquired property. The facts of this case are different from the facts of the present case and hence no reliance can be placed.
(20.) Vaneeta Khanna and Ors. vs. Rajiv Gupta and Ors. (01.10.2015 - DELHC) The defendant stated that unilateral acts by one individual cannot take away vested rights of another family member. All such documents executed by unilateral acts would be declared void and not binding upon the parties and also on point that rejection of suit under order VII Rule 11 CPC would not operate as res judicata.
This is the suit filed for possession, declaration, mesne profits/damages, perpetual injunction and mandatory injunction. In this suit declaration of ownership is sought by the plaintiff as a categorical relief. However the present suit is filed by the CS NO.7664/16 & CS No. 7665/16 Page No. 27 /94 plaintiff for possession and through the said suit the defendant is trying to seek relief of declaration of ownership in his favour without any prayer or counterclaim to that effect. Therefore, this judgement also is not of any help to the defendant. (21.) Virender vs. The State of NCT of Delhi (29.09.2009 - DELHC) The defendant stated upon the competency of a witness as a basic requirement of understanding an obligation to speak the truth and to give accurate impression and possession of mental capacity. This is a criminal matter pertaining to offence of rape and hence not relevant in the present case.
(22.) Bonder and Ors. vs. Hem Singh (Dead) by Lrs. and Ors. (15.05.2009 - SC) The defendant stated that in case of entrustment by one brother to another to handle the property, the plea of latter being a licensee or the former being a sole owner cannot arise. This case pertains to entrustment of property by plaintiff to his defendant brother and issue also pertains to claim of adverse possession. Hence no benefit can be taken for the present case.
(23.) K.C. Saha vs. R.K. Banerjee (27.03.1981 - PATNAHC) The defendant relied on the point of valuation/ ejectment of licensee. The case pertains to valuation of the suit of eviction against tenant. Hence no merit can be derived for the present CS NO.7664/16 & CS No. 7665/16 Page No. 28 /94 case.
(24.) Traders Syndicate vs. Union of India (UOI) (21.07.1982 - CALHC) The defendant stated that in absence of cross examination done with respect to a fact or document put to witness would tantamount to the other side admitting the execution of the said document. This is a suit for recovery of compensation for non delivery by the defendant of the consignment. Hence the suit is of no avail in the present matter.
(25.) Devi Sahai judgment at no.5 is repeated here (26.) Qaiser Jahan Begum and Ors. vs. Ramzan Karim and Sons (01.04.1998 - DELHC) The defendant stated that the unrebutted testimony which is given by a witness would tantamount to a deemed admission of the said fact, pleading or document. This is again a suit for recovery of money from the defendant and hence does not pertain to the present suit.
(27.) Sakhahari Parwatrao Karahale and another Vs. Bhimashankar Parwatrao Karalhe 08.08.2000 Supreme Court Order The defendant stated that possession by one family member without partition would be considered as possession of all. It CS NO.7664/16 & CS No. 7665/16 Page No. 29 /94 was a suit for permanent injunction against brother and matter pertained to the HUF property. Even here the facts of the case do not align with facts of the present case and hence not relevant in the present case.
(28.) Neel Dayal and Ors. vs. Someshwar Dayal and Ors. (22.03.2017 - DELHC) The defendant stated that any of the clause of memorandum of family settlement agreement does not show any intent of defendant to abandon his right to property or sorting the share of plaintiff as the sole owner. The case relates to suit for partition. The facts of this case do not align with the facts of present case and hence no reliance can be placed.
(29.) Marcel Martins vs. M. Printer and Ors. (27.04.2012 - SC) The defendant stated that the term producer means a person who holds a thing in trust for another, such person is duty bound to act for the benefit of others on matters within the scope of relationship. The matter deals with aspect of benami transactions. Further, even in this suit the relief of declaration with respect to co-ownership of the plaintiffs was sought. In the present case, there is no prayer or counterclaim for seeking the prayer of declaration of ownership and hence, this judgement cannot be made applicable to the present facts.
CS NO.7664/16 & CS No. 7665/16 Page No. 30 /94(30.) Kamala and Ors. vs. K.T. Eshwara Sa and Ors. (29.04.2008 - SC) The defendant stated that any finding given upon merits of suit rejected under Order VII Rule 11 CPC would not constitute the subsequent suit being barred by res judicata. This is again a suit for partition wherein an application under order VII Rule 11(d) CPC was decided by the court. No material finding is useful in the present case.
(31.) Satish Kumar Batra vs. Harish Kumar Batra and Ors. (09.02.2018 - DELHC) This is a suit for declaration and permanent injunction. The defendant stated that even if one family member does not abide by a family settlement, the harmony of the said family is disturbed, family settlements should be enforced without going into the technicalities. The main issues revolved around an unregistered family settlement. In the present case the family settlement is a registered document, and hence, this judgment is of no material use.
(32.) Mary Assumption Trinidade and Ors. Vs. Vincent Manuel Trinidade and Ors.(14.08.1975 - DELHC) The defendant stated that sanctity of the deed is to be kept intact when it makes provisions with regard to matter of share of parties. The matter clearly dealt with the provisions of The CS NO.7664/16 & CS No. 7665/16 Page No. 31 /94 Indian Succession Act and hence of no avail to the facts of the present case.
(33.) State vs. Mohd. Afzal and Ors. (29.10.2003 - DELHC) The defendant stated that correctness of falsity of a document cannot be looked into or raised at the time of tendering of such a document before the court. This is the parliament attack case. I fail to understand as to how the case is useful to the facts and circumstances of the present case at hand.
(34.) Hari narain Vs Bela devi judgment at point no. 14 is repeated (35.) Kondiram Bhiku Kirdat vs. Krishna Bhiku Kirdat (Deceased by L.Rs.) (04.10.1994 - SC) This is again a suit for partition and the property in dispute is a joint family property. The defendant stated that brothers contributing to the family property purchased by their father and who are looking after the property, such property would be a joint family property. The facts of the present case do not align with the facts therein.
(36.) Judgment at point no. 27 is repeated here. (37.) Judgment at point no. 18 is repeated here. (38.) Judgment at point no. 16 is repeated here.
CS NO.7664/16 & CS No. 7665/16 Page No. 32 /94(39.) Anil Kumar Mitra and Ors. vs. Ganendar Nath Mitra and Ors. (28.11.1996 - SC) This matter again pertains to the suit of partition. No finding is relevant for the present case at hand.
(40.) Hari Singh vs. Madan Lal and Ors. (24.01.2001 - DELHC) The defendant stated that pleadings and evidence are required to prove the sole ownership along with means to purchase the property and raise construction. This is a suit for possession and recovery of damages. Surprisingly this decision supports the claim of plaintiff in the present case and goes totally against the defence raised by the defendant. This judgement is discussed below along with findings on issue number 1.
(41.) Subraya M.N. vs. Vittala M.N. and Ors. (05.07.2016 - SC) This is again suit for partition. The defendant stated that the parties head acted upon the terms of written family settlement and the same was supported by the subsequent conduct of the parties. The facts of this case do not match with the facts of present case at hand. Hence no reliance can be placed.
(42.) Judgment at point no.1 is repeated.
CS NO.7664/16 & CS No. 7665/16 Page No. 33 /94(43.) Gopal Kishan vs. Ram Saroop (22.09.2017 - DELHC) The defendant stated that plea of forgery of family settlement is not sustainable when the same is viewed as being honored and non-registration of same is not fatal.
Discussed in details with findings on issue No. 5 below.
(44.) Rishi Pal Singh vs. Harinder Pal Singh and Ors. (02.05.2016 - DELHC) This is a suit for partition. The defendant stated that the family arrangement which is delineating specific portions to specific parties is not required to be registered. The matter revolves around a compromise agreement and no relevant finding can be traced out of it.
(45.) Vimla Monga and Ors. vs. Ramlubhai and Ors. (31.03.2014 - DELHC) The defendant stated that family arrangement has to be given a proper effect so as to deny a party to challenge it. This judgement is also filed on the sanctity of family settlement. It is discussed below along with findings on issue No. 5.
(46.) Manjit Singh and Ors. vs. Analjit Singh and Ors. (01.10.2012 - DELHC) The issue in this case pertains to the payment of stamp duty on the memorandum of family settlement. The defendant stated CS NO.7664/16 & CS No. 7665/16 Page No. 34 /94 that an oral family settlement reduced in writing as memorandum of settlement does not in itself create or extinguish any rights but the same only records pre-existing rights of the parties and the same requires no registration. The said issue is not an issue in the present case and this judgment is of no use.
(47.) Suresh Srivastava and Ors. vs. Subodh Srivastava and Ors. (31.08.2012 - DELHC) This is discussed along with findings on issue No. 5.
(48.) Judgment at point no. 13 is repeated.
(49.) Judgment at point no. 10 is repeated.
(50.) Judgment at point no. 12 is repeated.
(51.) Judgment at point no. 39 is repeated.
(52.) Judgment at point no. 22 is repeated.
(53.) Judgment at point no. 27 is repeated.
(54.) Judgment at point no. 35 is repeated.
(55.) Judgment not on record .
19. I shall now give my issue wise findings on the above mentioned issues in both the matters.
Issue No.4:- Whether the suit is filed without any cause of action? OPD (Also issue no. 3 of the connected case)
20. The plaintiff has filed suit for possession and mesne profits. It is CS NO.7664/16 & CS No. 7665/16 Page No. 35 /94 the case of the plaintiff that he is the owner of the suit property and the defendant is in possession of the ground floor of the suit property in respect of which the plaintiff has filed the present suit for possession.
21. It is argued by the defendant that since there exists a family settlement dated 18/09/1957, the parties to the suit are bound by the same. It is further argued that in disputes regarding possession among family members, the burden of proof lies heavily on the party claiming possession. Per Contra, the plaintiff has filed the present suit for possession on the basis of registered lease deed which resulted in a subsequent conveyance deed in favour of his daughter, being the only LR of the plaintiff after his demise. It cannot be said that the present suit is filed without any cause of action. Thus, at the outset, before discussing the other issues, it is significant to mention that I am of the opinion that the present suit is filed with a cause of action. The onus to prove whether the present suit is filed without cause of action was upon the defendant who has not been able to prove that how the present suit is filed without cause of action. Hence issue No. 4 (issue no. 3 of the connected case) is decided in favour of the plaintiff and against the defendant.
22. Issue No. 3:- Whether the defendant is co-owner of the property CS NO.7664/16 & CS No. 7665/16 Page No. 36 /94 in dispute in view of letter issued by Ministry of Urban, Government of India dated 24/08/1955? OPD (Also issue no. 2 of the connected case) The defendant has claimed to be co-owner of the suit property on the basis of letter issued by Ministry of Urban, Government of India dated 24/08/1955. On the other hand, the plaintiff has stated that the said letter is not in the form of any joint allotment as claimed by the defendant. The said letter is discussed in detail herein below:
Letter dated 24.08.1955 EX. DW4/34 and also Ex.DW1/2
23. This letter is of utmost significance in the present matter. The contents of the letter are reproduced herein below :
"I am directed to refer to the correspondence resting with your office letter No: F.50(7)/53- R&R(A) dated 22.02.54 on the subject noted above and to say that this Ministry has no objection to the joint allotment of the said plot in the name of the original allottee, Shri Vasheshar Nath Dewan and his brother Dewan Vishwa Nath, as desired by the allottee in his letter dated Nil a copy of which was sent to you vide this Ministry's letter dated 20.6.53. Necessary documents have already been obtained by this Ministry from both the brothers. The Housing & Rent Officer may, therefore, be instructed to amend his record accordingly".
24. The counsel for the plaintiff has argued that the said letter dated 24/08/1955 is not in the form of joint allotment, as claimed by the defendant. The counsel for plaintiff has submitted that the CS NO.7664/16 & CS No. 7665/16 Page No. 37 /94 said letter does not confer any co-ownership in favour of the defendant. Per contra the counsel for defendant has argued that the letter dated 24/08/1955 is a joint allotment letter. The counsel for defendant has placed reliance upon letter written by the deceased plaintiff requesting for joint allotment dated 20/22.06.1953 which is exhibit Ex.DW4/35. The defendant has further argued that the intention of the parties is reflected in the letter dated 20/22/06/1953 and further in the family settlement dated 18/09/1957. It is the case of the defendant that against the said letter and the agreement, the lease deed dated 30/12/1985 was fraudulently obtained by the deceased plaintiff concealing all the previous documents. The defendant has argued that the lease deed dated 30/12/1985 could not be executed as the letter dated 24/08/1955 was in existence. The defendant has argued that during the cross examination of DW4 Shri B Pal, when the counsel for plaintiff asked whether there was any letter or application or document with sought cancellation of letter dated 24/08/1955, the witness replied in the negative stating that no such document exists which shows the cancellation of the letter dated 24/08/1955.
25. The defendant has claimed to have acquired ownership in the suit property in the capacity of co-owner by virtue of this letter dated 24.08.1955. It is pertinent to mention here that vide the said letter, it was intimated that the concerned Ministry had no CS NO.7664/16 & CS No. 7665/16 Page No. 38 /94 objection to the joint allotment of the suit property in the name of the plaintiff and the defendant. Further, vide this letter, the Housing and Rent officer was instructed to amend his record.
26. Plain reading of the letter dated 24.08.1955 and objective interpretation of the same suggests that there was only an instruction for amending the record of the concerned department. This letter nowhere declares joint ownership or allotment in the name of the defendant. Certain directions have been given to the concerned department, which were never acted upon by the concerned department, for the reasons best known to the concerned department, which ultimately resulted in the execution of Lease Deed dated 30.12.1985 in favour of the plaintiff. The defendant has wrongly interpreted this letter and erroneously believed that the said letter confers a title upon him.
27. Reliance is also placed on the letter dated 17.10.1955 which is Ex.DW-4/33 and also Ex.PW3/DX10 from Under Secretary, Government of India to the Plaintiff. The contents of the letter are reproduced hereinunder:
"He may clear off arrears of ground rent amounting to Rs. 235/81 upto 31.3.56, so that this office records may be amended and the allotment may be made in his and his brother's CS NO.7664/16 & CS No. 7665/16 Page No. 39 /94 name."
28. Further reliance is placed on letter to Smt Mohsina Kidwai from the defendant dated 15.09.1987 which is Ex.DW4/4. Perusal of the said letter suggests that the defendant was requesting for formal lease deed in respect of the suit property on the basis of letter dated 24.08.55, the registration of which had not been done even on the date of writing the letter.
29. The above letters have been placed on record by witness produced by the Defendant himself. Even the said letters clearly demonstrate that the letter dated 24.8.1955 had not been acted upon by the Department. Thus, the Defendant has miserably erred by wrongly interpreting the letter dated 24.08.1955 as entitling the defendant to be a co owner in the suit property.
30. The entire case of the defendant is based on this document dated 24/08/1955. Vide the said letter, it was stated that the Ministry had no objection to the joint allotment of the suit property in the joint names of the deceased plaintiff and the deceased defendant and accordingly the Housing and Rent Officer was instructed to amend his record accordingly. The said letter was only in the form of an instruction which nowhere declared joint ownership in the name of the defendant. The said letter was never acted upon by the Department which is very CS NO.7664/16 & CS No. 7665/16 Page No. 40 /94 clear from the correspondence letters written by the defendant to various departments which are discussed below.
31. To add further, DW4 from Consultant Land and Development Office and DW5 from the office of Assessor and Collector House Tax Department have both deposed that the suit property was in the name of the deceased plaintiff which eventually was mutated in the name of Smt Nisha Sawhney. It is also a matter of record that in respect of the suit property conveyance deed has been executed in the name of Smt Nisha Sawhney on 26/02/2007. The onus to prove ownership in the name of the defendant was upon the defendant. The defendant has produced on record various letters written to various departments which are discussed at length below whereby he has asked the concerned department to cancel the lease deed dated 30/12/1985 in the name of the deceased plaintiff and has prayed for joint allotment of the suit property in the names of parties to the suit. However it is very clear that even as on today, as per the records, the suit property is mutated in the name of Smt Nisha Sawhney by virtue of a conveyance deed duly executed. The execution of the said lease deed has not been challenged before any court of law. Merely writing correspondence letters do not confer any title upon the defendant.
32. Per contra, the plaintiff has placed on record lease deed dated CS NO.7664/16 & CS No. 7665/16 Page No. 41 /94 30/12/1985 in his favour and further conveyance deed dated 25/02/2007 in the name of the daughter of the deceased plaintiff, who is also plaintiff No. 2 in the present matter after the demise of the plaintiff. Thus, the defendant has not been able to discharge the burden of proving his co-ownership in the suit property and hence issue No. 3(Also issue no. 2 of connected case) is decided against the defendant and in favour of the plaintiff.
33. Issue No.1:- Whether the plaintiff is owner of the property in dispute? OPP (Also,Issue no. 1 of the connected case) AND Issue No.2:- Whether the plaintiff is entitled to a decree of possession as prayed? OPP
34. The burden to prove issue no.1 is upon the plaintiff. The counsel for the defendant has vehemently argued on this aspect pointing out to various aspects which, as per him, do not confer ownership in favour of the plaintiff. The issues raised by the counsel for defendant have been dealt in detail herein below under various heads.
35. The plaintiff has placed reliance upon the lease deed dated 30/12/1985 which is Ex.PW2/1.
Further, The plaintiff has examined PW1 Shri Prem Singh, Inspector, House tax Department. The witness has deposed that CS NO.7664/16 & CS No. 7665/16 Page No. 42 /94 the property is assessed to House tax as per their record in the name of the deceased plaintiff. The house taxes have been paid by the deceased plaintiff as per their record. The mutation of the property in the name of the deceased plaintiff was recorded on 04/12/1987. The plaintiff has examined another witness PW-2, Shri Dinesh Sharma, clerk, Khatri Urban cooperative Bank who had brought the Original Lease Deed which is EX.PW2/1 and has deposed that the original lease deed of the suit property is in possession of the bank as loan was taken by M/s Sama international from the bank and the deceased plaintiff, in the capacity of the guarantor, mortgaged the suit property to the bank to secure the loan granted to Sama international by depositing all the title deeds. The defendant has examined DW4 Shri B Pal , Consultant Land and Development Office, who has deposed in his cross-examination that initially the suit property stood in the name of the deceased plaintiff and at the time of cross-examination the suit property stood in the name of Smt Nisha Sawhney. DW5, Shri Narendra kumar, AZI from the office of Assessor and Collector House tax Department has deposed in his cross-examination that on the date of the cross-examination, the suit property stood mutated in the name of Smt Nisha Sawhney. Prior to that, the suit property was in the name of the deceased plaintiff.
36. The plaintiff has argued that on the basis of the lease deed dated CS NO.7664/16 & CS No. 7665/16 Page No. 43 /94 30/12/1985 and further conveyance deed dated 26.02.2007 in favour of Smt Nisha Sawhney(upon the death of the original plaintiff and being his legal heir), the plaintiff is the owner of the suit property.
37. Thus, it stands proved that at present, on the basis of the lease deed dated 30/12/1985 and further the conveyance deed dated 25/02/2007, the suit property stands in the name of Smt Nisha Sawhney.
38. Other arguments for proving that the plaintiff is not the owner of the suit property have been led by the defendant on the grounds that the construction money with respect to the suit property was paid by the father of the deceased parties. The defendant has objected to the deposition by PW3, Sh Rakesh Sawhney, on the ground that he was attorney of the deceased plaintiff through legal representatives. During the cross- examination, PW3 could not explain from whom the deceased plaintiff had taken loan for construction of the suit property. Since the questions pertaining to construction of the suit property could only be answered by the deceased plaintiff or his legal representatives, the counsel for defendant has objected to the deposition of PW3 for not having personal knowledge. My findings on the construction money are here in below. Construction Money CS NO.7664/16 & CS No. 7665/16 Page No. 44 /94 The plaintiff has stated in his plaint that the plaintiff started construction of the plot (pertaining to the suit property) after taking possession and constructed a 2 and ½ storey on the said plot. It is stated that the construction was totally financed by the plaintiff, out of his own funds and savings and the construction of the suit property was completed during the period 1951-55. The counsel for the defendant has denied this and has stated that the construction was raised from the funds of father of the parties. The defendant has placed reliance on letter dated 01.11.1957 which is Ex.DW4/31 and Ex.PW3/DX4, to the Housing and Rent Officer requesting adjustment of the amounts on ground rent to be recovered against the claimed compensation due to his father vide compensation application no. 367- Ambala Cantt. To this, the father of the parties had written a letter dated 01.10.1960 Ex.DW1/11 to the Assistant Accounts Officer thereby requesting that the adjustment of the amount of Rs. 508.06P may kindly be made in respect of ground rent of the plot at the suit property.
39. The defendant had also placed reliance on agreement dt 18.09.1957 Ex.DW2/1 (also Ex.DW1/3) wherein the father of the parties had written that both the parties contributed towards the cost of the construction.
40. PW-3 in his evidence by way of affidavit has stated that the CS NO.7664/16 & CS No. 7665/16 Page No. 45 /94 plaintiff started construction on the said plot out of his funds. In his cross examination, PW-3 has stated that he was not present at the time of purchase of the suit property and also at the time of its construction. He has also stated that he is not aware of the fact whether the plaintiff (deceased) was not working anywhere in 1947 or that the defendant was in employment at that time. It is pertinent to mention that PW-3 is the son-in-law of the deceased plaintiff who had got married to the daughter of the deceased plaintiff on 04/12/1980. PW-3 had appeared as an attorney on behalf of Nisha Sawhney. The counsel for the plaintiff has argued that since PW-3 had no personal knowledge of construction of the suit property, he is not entitled to depose on the same.
41. During his cross examination, PW-3 had further stated that he has no knowledge where the deceased plaintiff kept the money at the relevant time for raising the construction. PW-3 was shown the documents which are Ex.PW3/DX14 (colly) pertaining to diary written by deceased Deena Nath containing details of accounts related to construction. PW-3 has deposed that he does not know whether the diary shown to him was written by deceased father of the parties or not.
42. The counsel for the defendant has argued that PW 3 has no right to depose being power of attorney holder on behalf of the LRS CS NO.7664/16 & CS No. 7665/16 Page No. 46 /94 of deceased plaintiff. The defendant has placed reliance upon S. Kesari Hanuman Goud vs. Anjum Jehan and Ors. (10.04.2013 - SC) in which it is held :
"It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2 Code of Civil Procedure empower the holder of the power of attorney to "act" on behalf of the principal. The word "acts"
employed therein is confined only to "acts"
done by the power-of-attorney holder, in exercise of the power granted to him by virtue of the instrument. The term "acts", would not include deposing in place and instead of the principal. In other words, if the power-of-
attorney holder has preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him.
Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined."
CS NO.7664/16 & CS No. 7665/16 Page No. 47 /9443. Per contra, it is argued by the counsel for the plaintiff that the said judgement is not applicable in the present facts as it states that power of attorney holder cannot depose in place of the principal; however, the present case is not so as the plaintiff had already expired and thereafter Shri Rakesh Sawhney deposed as an attorney on behalf of the LRS of deceased plaintiff. I agree with the submission made by the plaintiff. Plaintiff had already expired when the matter reached at the stage of evidence, personal knowledge of facts before his marriage on 04.12.1980 can not be expected, however, being son-in-law of the deceased plaintiff, it can be presumed that he has knowledge of the facts pertaining to the family matters thereafter and can depose with respect to those.
44. DW-1, Sh Bhushan Dewan in his evidence by way of affidavit has stated that his grandfather used to write all the expenses in the diary maintained by him during his lifetime. The passbook of Imperial Bank of India is Ex.PW3/DX15(colly). The counsel for the defendant has argued that since the PW-3 has not been able to prove how construction of the suit property was done, the version of the defendant supported through documents is liable to be believed.
45. The plaintiff has referred to contradictions in the stands taken CS NO.7664/16 & CS No. 7665/16 Page No. 48 /94 by the defendant on various occasions. He has pointed out to letter dated 25.07.1985 which is Ex.DW1/30, where it is mentioned that both the parties have raised construction from their own funds. He has also pointed out to preliminary objections raised by the defendant in his amended Written Statement wherein in para no.4 of preliminary objections, the defendant has stated that construction was raised from the funds of father of the parties and later on in the same paragraph, it is mentioned that the construction was raised from the funds of the parents of the deceased parties.
46. The counsel for the plaintiff has objected to the exhibition of the documents related to passbook and bills related entries related to the father of the parties which have been exhibited by DW1 which relate to the time prior to the birth of DW1. Further the counsel for the plaintiff has argued that no document has been placed on record which shows that construction money was paid by the defendant in his personal capacity.
47. The plaintiff has also rightly pointed out to contradictions in various letters and legal notice sent on behalf of defendant wherein at some places, it is mentioned that the construction was carried on by the father of the parties, while at some places, it is mentioned that construction was carried on by the parents of the parties and at some places, it is mentioned that the CS NO.7664/16 & CS No. 7665/16 Page No. 49 /94 construction was carried on by the defendant and his father. Thus the counsel for the plaintiff has argued that on the basis of the own admissions of the defendant, at least the plaintiff has contributed to 50% of the construction money.
48. Reliance is placed on many documents which have been exhibited; however for support, I am highlighting a few documents: Ex.DW1/25 and also Ex.DW5/2 which is letter from defendant to MCD dated 18/06/1985 wherein it is mentioned that "the construction thereon was erected by both of us as equal partners from our own resources". Further reliance is placed on Ex.DW1/30 which is letter dated 25.07.1985 which reads as "the construction on the plot was erected by both the partners from their own resources". Reliance is also placed on Ex.DW4/1 that is notice dated 21/12/1989 from Shri BB Gupta which reads as "that the property on the said plot had been constructed by my client, his brother and their father".
49. Even if it is admitted for the sake of arguments that the defendant or their father have paid the construction money in respect of suit property, still the defendant cannot claim ownership over the suit property. It is held in various judgments that merely because any of the party to the partition suit has incurred substantial expenses towards the cost of the construction, it will not, in any way, increase or decrease the CS NO.7664/16 & CS No. 7665/16 Page No. 50 /94 share of the party. At best, these type of claims can be subject matter of the money claim in the form of a separate suit or counter claim. Reliance is placed on Rameshwar Dayal Gupta Vs. Mange Ram Gupta. 2019 (176) DRJ 403 wherein it was held :
"Be that as it may, even if the Defendant has incurred the expenses as alleged, it does not in any way effect Plaintiff's share in the suit property. These expenses can only be a subject matter of a money claim, for which admittedly the Defendant is pursuing its counter claim."
Hence, the arguments that construction money was contributed by the defendant also does not award ownership in favour of the defendant.
Rent Agreements
50. The defendant has placed reliance on various Rent Agreements which have been executed between the deceased plaintiff and the deceased defendant on one part and a third party on the other part in respect of the ground floor of the suit property. The same are Ex.DW1/4, Ex.DW1/5, Ex.DW1/6, Ex.DW1/7, Ex.DW1/8, Ex.DW1/9 and Ex.DW1/10. In the said Rent Agreements, the deceased plaintiff and the deceased defendant have been together shown as lessors. It is argued on behalf of CS NO.7664/16 & CS No. 7665/16 Page No. 51 /94 the defendant that since the defendant was a co-owner of the suit property, the defendant was shown as a landlord even in these rent agreements. The said rent agreements are of the period before the execution of Lease Deed dated 30.12.1985 in favour of the deceased plaintiff. The defendant has erroneously considered himself as the co-owner of the suit property on the basis of letter dated 24.08.1955. It is a settled principle of law that lesser/landlord and owner are two different juristic concepts. Being a lessor/landlord, does not imply ownership in law. Any one who is authorized to collect rent on behalf of the owner can be a landlord and the landlord can necessarily be not the owner of the property while the owner can act in dual capacity, that is to say, as a landlord as well as the owner of the property.
51. Thus, the defendant being shown as a landlord in the rent agreements does not confer upon the defendant any ownership rights in the suit property.
52. Reliance is placed upon the decision of Hon'ble Supreme Court of India in Sheela and Ors. Vs. Firm Prahlad Rai Prem Prakash decided on 04/03/2002, in which it is held:-
"The definition of 'landlord' and 'tenant' as given in Clauses (b) and (i) of Section 2 of the Act make it clear that under the Act the CS NO.7664/16 & CS No. 7665/16 Page No. 52 /94 concept of land lordship is different from that of ownership. A person may be a 'landlord' though not an 'owner' of the premises. The factor determinative of land lordship is the factum of his receiving or his entitlement to receive the rent of any accommodation. Such receiving or right to receive the rent may be on the own account of the landlord or on account of or for the benefit of any other person"
House Tax and Wealth Tax
53. The defendant has argued that since he was a co-owner in the property, wealth tax and house tax in respect of the property has been paid by him. He has placed on record Notice of Demand under Section 30 of the Wealth Tax Act dated 31.02.1979, issued in the name of the deceased defendant. He has also placed on record form of acknowledgement of documents received from the deceased defendant. He has also placed on record receipts of payment of wealth tax for the year 1970-71 in which the name of the deceased defendant is shown as that of the assessee. In his correspondence vide letter dated 18.03.1981 with the Department of Wealth Tax, the deceased defendant has stated that he is the co-owner in the suit property along with the deceased plaintiff and therefore he is liable for payment of only 50% of the value of the house for the purposes of wealth tax.
CS NO.7664/16 & CS No. 7665/16 Page No. 53 /9454. The defendant has also placed reliance on receipts pertaining to house tax in the name of the deceased defendant which are Ex. DW1/15, colly (dates cannot be seen with clarity).
55. Form B which is Ex.DW5/8 was issued in favour of deceased father Sh. Vishwanath Dewan which states that he had let out the ground floor of the property to one tenant namely Mr. Oberoi and he himself was residing on the first floor of the suit property. Copy of the said Form B and Ka- kh is Ex. DW-1/16. The counsel for plaintiff has argued that these documents having the name of the defendant as its owner and the house tax receipts having the name of the defendant are of no consequence as they are simply survey reports and receipts. Further, the counsel for the plaintiff has placed reliance on various correspondence letters between the defendant and the authorities which show contradiction in the stands taken by the defendant with respect to payment of house tax. Reliance is placed on Ex.DW5/4 which is letter dated 10/04/1985 in which the defendant has stated "I have been collecting 50% share of the property tax from the other partner and making payment of the tax to the MCD." Per Contra, during the course of arguments the counsel for the defendant had stated that entire house tax was being paid by the defendant.
CS NO.7664/16 & CS No. 7665/16 Page No. 54 /9456. During his cross-examination, PW-3, Sh. Rakesh Sawhney has deposed that it is correct that the property stood in the name of defendant in the revenue records during the period 1971-1985. He voluntarily deposed that "We first objected and later on stopped making payment of house tax through the defendant". PW-3 Sh. Rakesh Sawhney has deposed that it is correct that defendant Vishawanth Dewan used to deposit the house tax in respect of the suit property. He voluntarily stated that the deceased defendant used to deposit the house tax on behalf of the plaintiff. He has deposed that he has no document to prove that the name of the deceased plaintiff appeared in the record of MCD for the period 1960-1985.
57. The plaintiff has examined PW-1, Sh. Prem Singh, Inspector, House Tax Department. He has deposed that the property is assessed to house tax as per their record in the name of Vasheswar Nath Dewan. The house tax is being paid by Vasheshwar Nath Dewan and the mutation of the property in the name of Vasheshwar Nath Dewan was recorded on 04.12.1987. In his cross-examination, he has deposed that before doing mutation in the name of deceased plaintiff, notice was sent to deceased defendant through registered AD but the AD or the postal receipt was not on his file.
58. The defendant has examined DW-3, Sh. Devender Pratap CS NO.7664/16 & CS No. 7665/16 Page No. 55 /94 Singh, from the Property Tax Department.
59. DW-5 is Sh. Narender Kumar, from the office of Assessor & Collector, House Tax Department. He has deposed that as per their record, vide letter dated 24.08.1955, the property was recorded in the name of the plaintiff and the deceased defendant. During his cross-examination, he has deposed that on the date of cross-examination, suit property stood mutated in the name of Ms. Nisha Sawhney w.e.f. 31.05.2010. The suit property was earlier in the name of the deceased plaintiff.
60. It is no res intergra that the payment of house tax or the mutation does not confer any rights, title or the interest in the property. The counsel for the plaintiff has placed reliance upon Mohinder Singh Verma v J.P.S. Verma 2015 1 CivCC 215 wherein it is held :
"as far as payment of house tax and electricity and water charges are concerned, again merely such payment does not confer or divest title. The only claim on this account could have been for recovery thereof."
61. Owning a property and getting the name entered in revenue record are two different and distinct things. Mutation entry does not confer right or title to the property. Mutation entry neither CS NO.7664/16 & CS No. 7665/16 Page No. 56 /94 creates nor extinguishes title or ownership. (SUMAN VERMA VS. UNION OF INDIA, (2004) 12 SCC 58). Mutation entries do not confer any title to the property. It is only an entry for collection of the land revenue from the person in possession. The title to the property should be on the basis of the title they acquired to the land and not by mutation entries. (DURGA DAS VS. COLLECTOR, (1996) 5 SCC 618). Mutation neither confers any title in the property nor is a document of title. (S M T. KAMLESH ARORA VS. MUNICIPAL CORPORATION OF DELHI 92 (2001) DLT 246 & J AGDISH CHANDER V S . L T. GOVERNOR AND ORS (2009) 112 DRJ 229).
62. In Ramesh Chander Gupta Vs. Kanta Gupta decided on 20 February, 2015 by Hon'ble Delhi High Court it was held that:
"The payment of property taxes by the plaintiff is not sufficient to confer the absolute ownership of the suit property on the plaintiff alone."
63. The defendant has placed reliance upon Vinod Kumar Dhall vs Dharampal Dhall (26.04.2018 Supreme court). This case supports the case of plaintiff only. The relevant paragraph from this judgement is mentioned below:
"Merely the fact that house tax receipt, electricity and water bills and other CS NO.7664/16 & CS No. 7665/16 Page No. 57 /94 documents are in the name of Dharampal would carry the case no further, as it was the father who got the name changed of Kumari Sneh Lata in question in the name of Dharampal. The receipts were only to be issued in the name of the recorded owner, but Dharampal never resided in the house as he was in service out of Delhi, obviously, the amount was paid by family, not by Late Dharampal. Thus, we find that no benefit could have been derived from the aforesaid documents."
Thus it cannot be said that the defendant acquired ownership in the suit property on the basis of his argument that House Tax and Wealth Tax were being paid by him.
Lease Deed dated 30/12/1985 and Partition Suit
64. The counsel for the defendant has argued that the lease deed dated 30/12/1985 is a void document for which there was no formal need to approach the Court of law for cancellation. To counter this, the plaintiff has placed reliance on the partition suit between the parties which is discussed in detail here in below.
65. The defendant in the present suit had filed a suit against the CS NO.7664/16 & CS No. 7665/16 Page No. 58 /94 plaintiff in the present matter and against the Union of India for partition which was titled as Vishwanath Dewan Vs. Vasheshar Nath Dewan & Anr. Registered as Suit No. 2097 of 1989. Vide order dated 15.07.2000, the plaint in the said suit was rejected under Order VII Rule 11 of CPC. In the said suit, the plaintiff(defendant herein) had moved an application under Order VI Rule 17 of CPC for directing Union of India to execute Lease Deed jointly in favour of the plaintiff(defendant herein) and the defendant no.1(plaintiff herein) and for declaration of the Lease Deed dated 30.12.1985 as null and void. The said application was dismissed vide order dated 29.05.1999. A revision was preferred by the plaintiff(defendant herein) before the Hon'ble High Court of Delhi and the same was also dismissed vide order dated 23.08.1999, passed by Hon'ble Mr. Justice M.K. Sharma. After the aforesaid developments, the defendant (plaintiff herein) moved an application under Order VII Rule 11 of CPC praying that as the defendant(plaintiff herein) is the absolute owner of the suit property by virtue of Lease Deed dated 30.12.1985, no cause of action existed in favour of plaintiff (defendant herein)to file a suit for partition. Vide order dated 15.07.2000, passed by Ms. Bimla Makin, Ld. Additional District Judge, Delhi, the said application under Order VII Rule 11 of CPC was allowed and the plaint was rejected as on the basis of the Lease Deed dated 30.12.1985, the defendant(plaintiff herein) was the exclusive CS NO.7664/16 & CS No. 7665/16 Page No. 59 /94 owner of the suit property. It was further clarified that if the plaintiff(defendant herein) prefers to get the said Lease Deed cancelled or set aside, the plaintiff would have fresh cause of action to seek partition of the suit property.
66. It is pertinent to mention that the defendant herein has not challenged the order dated 15.07.2000 before any court of law. Further, the defendant has not taken steps before any court of law for cancellation or setting aside of the Lease Deed dated 30.12.1985 in favour of the plaintiff which ironically he had sought as reliefs in the suit for partition by way of an application under Order VI Rule 17 of CPC. It is also very important to mention that a Conveyance Deed dated 26.02.2007 has also been executed by Land and Development Office in favour of Ms. Nisha Sawhney, being the only legal heir of the deceased defendant, for a consideration of Rs.51,127/- declaring Smt. Nisha Sawhney to be entitled to the suit property.
67. The defendant has not even challenged the execution of the said Conveyance Deed before any Court of Law.
68. I have gone through several letters which have been written by the Defendant as well as son of the deceased defendant to the concerned departments for adding his name as a joint owner of CS NO.7664/16 & CS No. 7665/16 Page No. 60 /94 the suit property in the records. The said letters also depict his knowledge that the suit property was being converted into freehold. The said correspondence letters have been discussed in detail in the below paragraphs. However, I fail to understand the reason behind the defendant not taking the appropriate remedy before any Court of Law despite being involved in the present litigation and other litigations with the plaintiff. Analysis of those correspondence letters is here in below :
Correspondence letters Reliance is placed upon the documents exhibited by DW-4, Sh B Pal, Consultant, L& DO, Ministry of Housing and Urban Development. The letter from Sh J S Tyagi to the Secretary dated 24.8.1955 which is exhibited as Ex.DW4/34, is discussed at length above. Perusal of the letter dated 31.10.1955 which is Ex.DW4/32 shows that housing and rent officer is directed to amend office record in furtherance of letter dated 24.08.1955. Letter to Smt Mohsina Kidwai from the defendant dated 15.09.1987 is Ex.DW4/4. Perusal of the said letter suggests that the defendant was requesting for formal lease deed in respect of the suit property on the basis of letter dated 24.08.55, the registration of which had not been done even on the date of writing the letter.
Ex.DW4/5 is again letter addressed to L&DO written by deceased defendant dated 06.12.1999. Vide the said letter, the deceased defendant has placed reliance upon letter dated CS NO.7664/16 & CS No. 7665/16 Page No. 61 /94 24.08.55 and has prayed for registration in the name of one of the allottees to be cancelled and for a fresh allotment jointly in the name of deceased plaintiff and deceased defendant.
Ex.DW4/1 is letter dated 21.12.1989 to the Secretary, Ministry of Urban Development which is written by the counsel for the deceased defendant whereby the defendant has raised grievance that without investigation the true facts, the department of Rehabilitation executed a lease deed in favour of the deceased plaintiff on 30.12.1985 and has prayed for cancellation of the lease deed dated 30.12.1985 and execution of a Fresh lease deed jointly in favour of the deceased plaintiff and the deceased defendant. It is pointed out by the counsel for the plaintiff that the said notice was issued after the plaintiff herein had filed Written Statement in the partition suit filed by the defendant against the plaintiff.
Ex.DW4/8 is letter dated 15.09.1987 from the deceased defendant to the Land & Development Officer with a request for furnishing of a copy of lease deed in respect of the suit property.
Ex.DW4/2 is letter from deceased defendant to Hon'ble Minister for Urban Development which is dated 30.08.2000 whereby the deceased defendant has raised his grievance about the wrong and unlawful registration of lease deed in respect of the suit property only in the name of one of the joint allottees. Deceased defendant has also stated his knowledge that legal representative of the deceased plaintiff were trying to get the suit CS NO.7664/16 & CS No. 7665/16 Page No. 62 /94 property converted into freehold. The deceased defendant has prayed for keeping the freehold of the suit property pending till final decision of the case pending with respect to the suit property.
Ex.DW4/29 is a legal opinion sought by the Ministry of Urban Development. Neither the Plaintiff nor the defendant are privy to the same. The counsel for the plaintiff has submitted that his legal opinion is between the Ministry of Urban Development and their legal advisor and is not binding upon any of the parties to the present suit. I agree with this submission.
Ex.DW4/13 is letter dated 06.12.2000 which is sent to the deceased plaintiff as well as the deceased defendant vide which both the deceased plaintiff and the deceased defendant were called for a hearing by the Land & Development Officer before taking a final view regarding ownership of the suit property. The counsel for the plaintiff has pointed out the plaintiff had expired on 26.09.1997 and the said letter was only sent to the defendant. It is pointed out by counsel for plaintiff that a tick mark at Serial No. 2 on Ex.DW4/13 also shows that the letter was only sent to the defendant.
Ex.DW4/14 is letter to Deputy Land and Development Officer written by the defendant wherein he had replied to the letter dated 06.12.2000 and had also mentioned that he and his family had very very strained relations with the family of the deceased plaintiff. While in his evidence by way of affidavit CS NO.7664/16 & CS No. 7665/16 Page No. 63 /94 which is Ex.DW1/A, Sh Bhushan Dewan has stated that after the receipt of the show cause notice dated 08.02.2000, Smt Kusum Dewan came to his father and handed over the show cause notice to his father and revealed that her husband ie the deceased plaintiff was forced to do the act of preparing the lease deed by playing fraud with the department due to his son-in-law namely Sh Rakesh Sawhney. There is a clear contradiction in the stand taken by the deceased defendant and later on by his son.
Ex.DW4/17 is letter dated 22.02.2001 from the defendant to Land & Development Officer, calling for action against the 'unlawful' registration of lease deed dated 30.12.1985 without cancellation of the joint allotment of the plot which still held the field.
Ex.DW4/19 is letter dated 19.09.2001 to Land & Development Officer by the defendant, alleging fraudulent registration of lease deed dated 30.12.1985.
Ex.DW4/23 is letter dated 19.03.2002 to Land & Development Officer by the defendant, again setting up his grievance against registration of Lease deed dated 30.12.1985.
Ex.DW4/25 and Ex.DW4/26 are the letters to land and Development Officer by the defendant on the same lines as mentioned in his last letters.
69. The argument made by the counsel for the defendant that the lease deed dated 30/12/1985 is a void document for which there CS NO.7664/16 & CS No. 7665/16 Page No. 64 /94 was no formal need to approach the Court of law is in contradiction to his earlier stand in the partition suit between the parties. The counsel for the plaintiff has argued that on one hand the deceased defendant in the partition suit mentioned above was trying to seek the relief of cancellation of the lease deed dated 30/12/1985 which was declined by the court and on the other hand the defendant has now claimed that there was no requirement of getting the lease deed cancelled. The defendant, for the reasons best known to him, chose not to approach any court of law of lease deed cancelled but on the other hand continued to write letters to the Land and Development Office regularly for the purpose of cancellation of the lease deed.
70. As per the witnesses brought before the court by the defendant, it stands proved that the suit property was in the name of the deceased plaintiff and later on mutated in the name of Smt Nisha Sawhney . It is a settled principle of law that a registered document is presumed to be genuine and onus to prove otherwise is on the person who challenges it. In the present case, the said lease deed has never been challenged by the defendant before any court of law. Though the defendant had objected to the execution of the said lease deed in his various letters written to various departments, however, no prayer for cancellation of the said deed was made before any court of law except in his application under Order VI rule 17 of CPC filed in CS NO.7664/16 & CS No. 7665/16 Page No. 65 /94 the partition suit which was eventually dismissed. I am of the considered opinion that the allegation that the said lease deed is a void document is a bald allegation which is not proved by the defendant.
71. In the matter of Prem Singh and Ors. v. Birbal and Ors AIR 2006 SUPREME COURT 3608, it is held:-
"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption." (emphasis supplied) In view thereof, in the present cases, the initial onus was on the plaintiff, who had challenged the stated registered document."
72. Since the 1985 Lease Deed is a document which is more than 30 years old, we may advert to Section 90 of the 1872 Act, which provides for the presumption in favour of a 30 years old document. The same is extracted below:
"90. - Presumption as to documents thirty years old- Where any document, purporting or CS NO.7664/16 & CS No. 7665/16 Page No. 66 /94 proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation:- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
73. The presumption in favour of a 30 years old document is, therefore, a rebuttable presumption. Nothing prevented the defendant to rebut the presumption by leading appropriate evidence in order to disprove the same. Since the defendant failed to do so, the said document would be binding on the defendant. To add further, the said lease deed has been acted CS NO.7664/16 & CS No. 7665/16 Page No. 67 /94 upon and conveyance deed has been registered in the name of Smt Nisha Sawhney. During the cross examination the defendant had deposed that he is aware of conveyance deed in the name of Smt Nisha Sawhney. Further as per the letters written by the defendant to the land and development office, discussed above, the defendant had specifically written that Smt Nisha Sahni was trying to get the suit property converted into freehold. I fail to understand that when the defendant was aware of all the developments pertaining to the suit property why no steps were taken by him before any court of law challenging the same.
74. At the end, I would like to mention that the defendant has placed the judgement on record titled as Hari Singh vs. Madan Lal and Ors. (24.01.2001 - DELHC). Surprisingly this decision supports the claim of plaintiff in the present case and goes totally against the defence raised by the defendant. Relevant extract from the said judgement is reproduced here in below:
"We are also not convinced with the reasoning given by the learned trial Court that the transaction in question namely execution of lease deed by the Government in favor of the appellant was a sham transaction. How the Court could dub the execution of lease deed by the Government in favor of the appellant as CS NO.7664/16 & CS No. 7665/16 Page No. 68 /94 sham. Relying upon the judgment of Supreme Court in the case of Custodian of Evacuee Property, Punjab Vs. Jafran Begum, this Court has held in the case of Riaz Ahmad (supra) that a sale of property forming part of the compensation pool or any order refusing to set aside the sale cannot be challenged in Civil Court on the ground that the sale was collusive or was not properly published or conducted. This was also a case governed by Displaced person (Compensation and Rehabilitation) Act.
13. Since the lease deed in question cannot be treated as sham one, the reliance by learned trial Court on various judgments to the effect that Benami Transactions (Prohibitions) Act, 1988 would not be applicable is of no use. The trial Court was also not right in ignoring the judgment dated 11th April, 1991 passed by Shri H.R.Malhotra, learned Additional District Judge, Delhi in rejecting the plaint of the respondent No.3 under Order 7 Rule 11(d) holding that such a partition suit was barred in view of Section 4 of the said Act. The said Suit was filed by respondent No.3 for CS NO.7664/16 & CS No. 7665/16 Page No. 69 /94 partition, naturally on the allegation that she was co-owner of the property. While rejecting the plaint, the Court held that it was not open for her to plead co-ownership in view of the fact that property stood in the name of the appellant. Therefore when such plea of co- ownership was not held to be admissible to the respondent No.3, how respondent No.3 could take this plea in the present Suit, after the said judgment, is not understandable. The learned trial Court clearly fell in error in deciding so. The judgment dated 11th April, 1991 rendered by Shri H.R.Malhotra, learned Additional District Judge in Suit filed by the respondent No.3 became final as it was not challenged. The decision would operate as res judicata.
14. In view of the aforesaid discussion, we are of the opinion that findings of the learned trial Court on issues No. 4 and 7 are not correct in law. We hold that defendants/respondents are not co-owners in the Suit property. It is not joint family property but appellant/plaintiff is the exclusive owner of the property in question. Defendants/respondents were CS NO.7664/16 & CS No. 7665/16 Page No. 70 /94 residing therein as licensee with the permission of the appellant/plaintiff."
75. Thus on the basis of the above discussion at length and also considering that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt, I have come to the conclusion that plaintiff is the owner of the suit property.
Thus, Issue No.1 (also issue no 1 in connected case) is decided in favour of the plaintiff and against the defendant thereby declaring plaintiff to be the lawful owner of the suit property. Once the ownership of the plaintiff is decided with respect to the suit property, he has every right to seek eviction of an unlawful occupant of the suit property. Thus, Issue No. 2 is decided in favour of the plaintiff and against the defendant entitling the plaintiff to recover possession of suit property from the defendant.
76. Issue No. 5:- Whether the registered agreement dated 18/09/1957 is no agreement in the eyes of law and is fabricated document as alleged? OPP" (Also, issue no. 4 in connected matter) Agreement dated 18.09.1957 The Agreement dated 18.09.1957 which is Ex.DW2/1 and CS NO.7664/16 & CS No. 7665/16 Page No. 71 /94 Ex.DW1/3 has been placed on record by the Defendant. This agreement is between the plaintiff and the defendant on first part and their father Sh. Dewan Dinanath on the other part. Vide the said agreement, it is agreed between the parties that the suit property was allotted to the plaintiff and later on the defendant was joined as an allottee vide allotment letter dated 24.08.1955, as a result of which, the defendant herein became the owner of the suit property in equal share. Through the said agreement dated 18.09.1957, the plaintiff and the defendant herein have been declared to be co-owners of the suit property, by the parties to the agreement themselves.
77. It is of utmost importance to point out here that in the said agreement dated 18.09.1957, it is agreed between the parties that the suit property was allotted in the name of the plaintiff herein. It is further mentioned in the said Agreement that vide letter dated 24.08.1955, the defendant became co-owner in the suit property. The interpretation of the letter dated 24.08.1955 has already been done by me herein above. As per the above discussion, the letter dated 24.08.1955, confers no title upon any of the parties to the present suit, which is the foundation of the agreement dated 18.9.1957. Thus, the family agreement dated 18.09.1957, has been totally based on a wrong premise and bilateral mistake of fact which would render the agreement void as per section 20 of the Indian Contract Act which is CS NO.7664/16 & CS No. 7665/16 Page No. 72 /94 reproduced under:
"20. Agreement void where both parties are under mistake as to matter of fact.--
Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement the agreement is void."
78. The whole basis of division of property as per the agreement dated 18.09.1957 is based on the letter dated 24.08.1955 which is not conveying any right, title or interest in favour of any of the parties. It is pertinent to mention that the agreement dated 18.09.1957 is a registered agreement, however, when the basis of the agreement dated 18.09.1957 is a misconception and bilateral mistake of fact, no reliance can be placed on the contents of the agreement dated 18.09.1957 which is in itself a void agreement.
79. To add further, the defendant herein had filed a suit against the plaintiff herein for partition which is registered as No. 2097 of 1989. Vide order dated 15/07/2000 the plaint in the said suit was rejected under Order VII Rule 11 of CPC. The defendant herein had relied upon the family settlement dated 18/09/1957 in the said suit which was not considered by the court on the ground that there existed a registered lease deed in favour of the plaintiff herein. The said order dated 15/07/2000 has never been CS NO.7664/16 & CS No. 7665/16 Page No. 73 /94 challenged and thus, has attained finality. Thus, it is absolutely clear that the agreement dated 18/09/1957 was not considered by the court as being a binding family settlement and the said order has even attained finality now.
80. Now, the said agreement dated 18.09.1957 has been placed on record by the defendant. The plaintiff has averred in para no.4 of his plaint that the father of the plaintiff got some blank papers signed from the plaintiff and on the said blank papers got prepared forged and fabricated and alleged agreement dated 18.09.1957 giving share in the property to the defendant. On the execution of the agreement dated 18.09.1957, certain questions were put to PW-3 Rakesh Sawhney. PW-3 deposed that the signatures at point 'A' and 'B' of the agreement dated 18.09.1957, which is Mark DA are similar to his father-in-law, however, he could not say that the handwriting encircled in red was his handwriting or not. Even otherwise, PW-3 is neither the executant of the agreement dated 18.09.1957 nor a witness to the same. His testimony on the agreement dated 18.09.1957 is purely hearsay in nature and cannot be permitted in law.
81. As per order dated 27.03.2002, additional Issue No. 2A was framed by this Court. It is mentioned in the order sheet that :
"It may be mentioned that it is not the plaintiff but it is the defendant who is placing reliance CS NO.7664/16 & CS No. 7665/16 Page No. 74 /94 on this agreement and now the defendant has placed on record that agreement. Under these circumstances, in order to sort out the controversies between the parties, following additional issue is being framed :
Addition Issue No. 2A Whether the registered agreement dated 18.09.1957 is not agreement in the eye of law and is fabricated document as alleged ? OPP"
82. During the course of arguments, the counsel for the plaintiff has strongly submitted that the agreement dated 18.09.1957 was neither placed by him on record nor had he ever sought declaration of the said agreement as non est in the eyes of law and a fabricated document. Despite having not prayed for so, the onus to prove this issue was wrongly placed upon the plaintiff. The plaintiff has prayed for striking out this issue. I find merit in the submissions made by the plaintiff. The relevant extracts from the order sheet dated 27.03.2022 mentioned above, clearly convey that the reliance was placed on the agreement dated 18.09.1957 by the defendant. Thus, the onus to prove the said agreement ought to be on the defendant. Without going into further controversy on this issue, as discussed above, the very foundation of the agreement dated 18.09.1957 is misconceived and hence it cannot be concluded CS NO.7664/16 & CS No. 7665/16 Page No. 75 /94 that vide the said agreement any lawful division of the property has been done. Since it is non est in law, there is no requirement of proving whether it was fabricated or not.
83. Thus, it can be safely concluded that the agreement dated 18/09/1957 is no agreement in the eyes of law being based upon mistake and misconception and also being already rejected by court of law in a prior suit.
84. On the aspect of family settlement, the defendant has placed reliance upon the following judgments:
Gopal Kishan vs. Ram Saroop (22.09.2017 - DELHC) "15- A Family Settlement, it was held as far back as in Kale v. Deputy Director of Consolidation, MANU/SC/0529/1976 : 1976 (SLT Soft) 4 : (1976) 3 SCC 119, is to be viewed without the technicalities of law and to be honoured."
Vimla Monga and Ors. vs. Ramlubhai and Ors. (31.03.2014 - DELHC) Suresh Srivastava and Ors. vs. Subodh Srivastava and Ors.
(31.08.2012 - DELHC) "14. I must at this stage state that Courts have repeatedly observed that family settlements which settle the disputes between the parties, CS NO.7664/16 & CS No. 7665/16 Page No. 76 /94 bring family peace, and therefore peace in the community must be endeavoured to be upheld and not to be set aside. I think this rationale squarely applies in the facts of the present case. That a family settlement is not required to be stamped or registered is now well settled law and reference can be made to the celebrated judgment in the case of Kale & Ors. Vs. Dy.
Director of Consolidation & Ors.
MANU/SC/0529/1976 : AIR 1976 SC 807."
85. These judgments, however, cannot be relied upon in the present case as the family settlement dated 18/09/1957 is held to be a void agreement on the basis of the findings mentioned above.
86. Even though this issue was never pressed upon by the plaintiff to be framed, but still onus to prove the same was put upon him. The plaintiff has been able to discharge the burden of proving the said issue in his favour. Thus issue No. 5 (issue No. 4 in the connected case) stands proved in favour of the plaintiff and against the defendant.
87. Issue No. 6:- Whether the suit property bearing number I-41, Jangpura Extension , New Delhi is ancestral property of the parties as stated in the written statement? OPD CS NO.7664/16 & CS No. 7665/16 Page No. 77 /94 The burden to prove this issue is upon the defendant. It is pleaded by the defendant that since the construction money in respect of construction of the suit property was paid by the father of the parties, the suit property had become ancestral in nature.
88. The issue wise findings on the issue related to construction money have already been discussed above in the findings on Issue No. 1.
89. The nature of the suit property being ancestral is also pleaded on the ground that the ground rent in respect of the suit property was adjusted from the claim compensation due to the father of the deceased plaintiff and the deceased defendant. The defendant has also pleaded that the construction of suit premises was funded through compensation received along with rental income from agricultural land owned by father of the parties in Ambala. The Conveyance deed for the house in Ambala is Ex.DW1/12 and Ex.PW3/DX15 collectively. The original Khatauni issued to father of the parties is also a part of the exhibited documents. It is further argued that letter dated 01/10/1960 from the father of the parties to the Ministry of rehabilitation requesting adjustment of ground rent arrears associated compensation asking for joint allotment of suit property the parties also shows that the property is ancestral. It is stated by PW3 that this letter acknowledges a payment of ₹ CS NO.7664/16 & CS No. 7665/16 Page No. 78 /94 75/- made by the deceased plaintiff towards the suit property. The counsel for the defendant has contended that there are significant discrepancies between the content of the letter and the claim, particularly regarding the handwriting of the letters final paragraph which indicates that it was added maliciously. Attention is also pointed out to the letter dated 01/11/1957 in which the plaintiff requested the housing and rent officer to apply the ground rent arrears for the suit premises against the compensation owed to the father of the parties against the properties left behind in Pakistan.
90. On the basis of these submissions, the counsel for the defendant has argued that the family settlement dated 18/09/1957 is a fair document dividing the properties to all the branches in equal proportion.
91. The findings with respect to the family settlement dated 18/09/1957 have already been given above whereby it is concluded that the family settlement dated 18/09/1957 is void document which has also been rejected by the Court in a previous litigation between the parties. Issue No.1 has already been decided in favour of plaintiff holding the plaintiff to be owner of the suit property.
92. Further, it is a settled principle of law that presumption of CS NO.7664/16 & CS No. 7665/16 Page No. 79 /94 ownership cannot be raised only on the basis of payment of construction money and payment of ground rent as averred by the defendant. The defendant has claimed the property only on the basis of construction money being paid by the father of the deceased parties to the suit. The nature of the suit property being ancestral is not proved by any other means. Since the onus to prove this issue was upon the defendant, the defendant has failed to prove the same.
93. After passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessors-in- interest from the latter's paternal ancestors up to three degrees above, has come to an end. Under the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors up to three degrees above him, then his male legal heirs up to three degrees below him had a right in that property equal to that of the person who inherited the same.
94. Putting it in other words when a person 'A' inherited property from his father or grandfather or great grandfather then the property in his hand was not to be treated as a self- acquired property but was to be treated as an HUF property in which his son, grandson and great grandson had a birth right in property of 'A'.
CS NO.7664/16 & CS No. 7665/16 Page No. 80 /9495. After passing of the Hindu Succession Act, 1956, this position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a self-acquired property of the person who inherits the same. There are two exceptions to a property inherited by such a person being and remaining self-acquired in his hands, and which will be either an HUF and its properties was existing even prior to the passing of the Hindu Succession Act, 1956 and which Hindu Undivided Family continued even after passing of the Hindu Succession Act, 1956, and in which case since HUF existed and continued before and after 1956, the property inherited by a member of an HUF even after 1956 would be HUF property in his hands to which his paternal successors-in- interest upto the three degrees would have a right.
96. The second exception to the property in the hands of a person being not self- acquired property but an HUF property is that if after 1956 a person who owns a self-acquired property throws the self-acquired property into a common hotchpotch whereby such property or properties thrown into a common hotchpotch become Joint Hindu Family properties/HUF properties. In order to claim the properties in this second exception position as being HUF/Joint Hindu Family properties/properties, a plaintiff CS NO.7664/16 & CS No. 7665/16 Page No. 81 /94 has to establish to the satisfaction of the court that when (i.e date and year) was a particular property or properties thrown in common hotchpotch and hence HUF/Joint Hindu Family created.
97. Thus, the submissions that the property is ancestral in nature are bald submissions not supported by any concrete evidence as against registered documents in favour of the plaintiff. Hence, issue No. 6 is decided against the defendant and in favour of the plaintiff.
98. Issue No. 7:- Whether the suit is barred under the provision of Section 53A of Transfer of Property Act? OPD The onus to prove this issue is upon the defendant. Before giving my findings on this issue, it is relevant to cite Section 53-A of Transfer of Property Act.
"53A. Part performance.--
Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the CS NO.7664/16 & CS No. 7665/16 Page No. 82 /94 transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
99. It goes on to say that whenever there is a case where an individual has accepted possession of an immovable property subject to a contract for its transfer, and the transferee has performed or is ready to perform his part of the contract, the CS NO.7664/16 & CS No. 7665/16 Page No. 83 /94 transferor shall not protect his rights against the transferee, even though such a transfer has not been made through a registered instrument.
100. However, this protection does not amount to establishing rights and again does not vest ownership rights. It only offers a shield to the transferee for protecting possession but does not enable the transferee to claim rights as owner.
101. Shri Sanjay Verma vs. Shri Manik Roy and Ors. (2006) It is reiterated by the Supreme Court in this case that Section 53A does not give rights of ownership to the transferee. It only serves as protection against transferor or successors in interest. It was held that the transferee could protect their possession but cannot claim ownership unless there is a fulfilment of such transfer by a registered deed. In plain words, it can be said that Section 53A provides limited protection under the doctrine of part performance but does not replace the need for formal registration of property transfer to claim full ownership rights. The Supreme Court has clarified that while Section 53A may avoid dispossession, it cannot vest title in the absence of proper legal procedures.
102. In the present facts, on the basis of findings on issue no.1, it is established that the plaintiff is the owner of the suit property.
CS NO.7664/16 & CS No. 7665/16 Page No. 84 /94Further, it not the case of the Plaintiff that he ever contracted to transfer for consideration the suit property. Thus, no question of transferring ownership in favour of defendant arises in the absence of any such contract between the parties. As per the case of the defendant, plaintiff had agreed to have joint allotment of the suit property. However, the said letter was not acted upon by the concerned department and lease deed was executed in favour of the plaintiff dated 30.12.1985. The plaintiff has filed the present suit for recovery of possession against the defendant. However, it appears that the defendant is trying to seek declaration with respect to his co ownership in the suit property (as believed by the defendant) by way of the plaintiff's suit. My attention is drawn to the argument made by the counsel for the plaintiff candidly that what would the defendant get if the plaintiff simply withdraws the present suit ! Of course, no title would vest upon the defendant in that case. It is a simple case of clever drafting whereby through the suit filed by the plaintiff, the defendant is trying to seek the relief of declaration of co-ownership and cancellation of lease deed dated 30.12.1985 in his favour, which is not permissible as per law. Thus, in the present facts there is no application of the doctrine of part performance as provided in section 53A of the Transfer Of Property Act. Hence, issue No. 7 is decided against the defendant.
CS NO.7664/16 & CS No. 7665/16 Page No. 85 /94103. Issue No. 8:- "Whether the suit is not maintainable in view of withdrawal of the same by the plaintiff no 1 Smt Kusum Dewan vide order dated 3/05/2006 of this court? OPD"
The burden to prove this issue is upon the defendant. On 26/9/1997, the plaintiff in the main suit expired and his wife Smt. Kusum Dewan and his only daughter Ms. Nisha Sawhney were impleaded as his legal heirs vide order dated 17.11.1996. On 31.05.2004, an application was filed on behalf of Smt. Kusum Dewan vide which she had withdrawn her General Power of Attorney in favour of her son-in-law Sh. Rakesh Sawhney and also withdrawn her vakalatnama in favour of her counsel, Sh. Yash Pal Ahuja in the main suit as well as in the connected case. She also stated that since the plaintiff and the defendant were co- owners of the suit property, she did not want to proceed with the case and therefore withdrew her case. Separate statement of Smt. Kusum Dewan was recorded on 13.07.2004.
104. The Counsel for the plaintiff has pointed out to preliminary objection no.6 of the amended written statement filed by the defendant, wherein, it is written that the said application dated 31.05.2004, was written by Smt. Kusum Dewan and she herself appeared before the Court along with her Counsel and her statement was recorded in the presence of her Counsel Sh. Y.P. Ahuja. It is stated by DW-1 Sh. Bhushan Dewan in his cross- examination that Smt. Kusum Dewan could only sign. It is CS NO.7664/16 & CS No. 7665/16 Page No. 86 /94 therefore difficult to believe that a lady who could only sign had written an application and letters dated 31.05.2004 on her own.
105. The counsel for the defendant has stated that PW3 on 23/10/2008 and also on 26/03/2009 stated that he was not aware of any application or statement being made by Smt Kusum Dewan, but no reply as to why Smt Kusum Dewan made the said statement for withdrawal of the case all power of attorney after executed relinquishment deed was given by PW-3. Even in his cross-examination on 09/11/2017, PW-3 stated that he never met Smt Kusum Dewan with regard to her statement on 13/07/2004. I don't find anything crucial in the said cross- examination of PW-3 as pointed out by the counsel for the defendant.
106. It is pertinent to mention here that after the death of the plaintiff, he was represented by his two legal heirs namely Smt. Kusum Dewan being his wife and Smt. Nisha Sawhney being his daughter.
107. Firstly, the suit could not be withdrawn by one legal representative alone without the consent of another legal representative and even otherwise, the withdrawal of the suit by Smt. Kusum Dewan on 31.05.2004 would have no validity in terms of the relinquishment deed executed by her in favour of CS NO.7664/16 & CS No. 7665/16 Page No. 87 /94 Smt. Nisha Sawhney on 31.03.2004, after which Smt Kusum Dewan was left with no right in the suit property. The relinquishment deed is now discussed herein below :
108. Relinquishment Deed It is submitted by Counsel for the defendant that upon the withdrawal of the present case by Smt. Kusum Dewan, the plaintiff, Smt. Nisha Sawhney in collusion with her attorney filed an application under Order XXII Rule 10 of CPC informing that Smt. Kusum Dewan has relinquished her share in the suit property in favour of Ms. Nisha Sawhney vide relinquishment deed dated 31.03.2004 which is Ex.PW3/14. The defendant has stated that the said relinquishment deed could not be executed as the matter was sub-judice and also that the said relinquishment deed has got executed by playing a fraud upon Mrs. Kusum Dewan.
109. It is correct that the relinquishment deed dated 31.03.2004 Ex.PW3/14 is not a part of pleadings. However, since the relinquishment deed is a registered document, this Court has power to take judicial notice of the same. During his cross- examination, DW-1 Sh. Bhushan Dewan, has admitted that on 31.03.2004, an alleged relinquishment deed has been executed by Smt. Kusum Dewan in favour of her only daughter Ms.Nisha Sawhney with consideration. DW-1 Sh. Bhushan Dewan had stated that the said relinquishment deed got CS NO.7664/16 & CS No. 7665/16 Page No. 88 /94 executed fraudulently. In my opinion, I do not find merit in the submission that the said relinquishment deed was executed fraudulently. The nature of fraud has not been explained by the defendant. I find no satisfying answer that why a mother who is only survived by a daughter cannot execute a relinquishment deed in favour of her only daughter. Even if it is to be believed that the said document was obtained by fraud, only Smt. Kusum Dewan could have testified about the same. Bald submissions against a registered document cannot sustain in law. Hence, I find no infirmity in the execution of the said Relinquishment Deed. Since, Smt. Kusum Dewan had executed relinquishment deed in favour of Ms. Nisha Sawhney on 31.03.2004, her withdrawal from the present case on 31.05.2004 would have no consequence.
110. The defendant has raised objections regarding the authenticity of the said Relinquishment Deed. The defendant has pointed out to the page no. 9 (last page) of the Relinquishment Deed where the photograph of the first party, i.e. Kusum Dewan, is missing while the photo of the second party and the witness is present. It is pertinent to mention that the Relinquishment Deed is a registered document vide registration no. 3757 in Book No. I Volume no. 3923 on page no. 97 to 104. The same contains certificate u/s 60 of the Sub-Registrar that left thumb impressions have been taken in his presence. Further, the said CS NO.7664/16 & CS No. 7665/16 Page No. 89 /94 Relinquishment Deed is signed on all the pages by Smt. Kusum Dewan. Page 1 of the said Relinquishment Deed contains the photographs of Smt. Kusum Dewan as releasor and Smt. Nisha Sawhney as the releasee. Even on the back page 2 of the relinquishment deed, it is stated that the execution is admitted by Smt Kusum Dewan and Smt Nisha Sawhney are identified by Sh S L Chaudhary and Sh Surinder Mohan Handa. It is further mentioned that contents of the document were explained to the parties to understand the condition and admit them as correct. The said Relinquishment Deed is executed with consideration. I find no infirmity in the execution of the said Relinquishment Deed. Further, the Counsel for the plaintiff has explained that he had inquired from the office of Sub-Registrar about the missing photograph on the last page upon which he was informed that the same got missed due to technical glitch. The argument raised by the defendant that Smt. Kusum Dewan was not present at the time of execution of Relinquishment Deed only on this ground does not find any weight. The said Relinquishment Deed is a registered document and the valid execution and registration of the same can be duly presumed under law. Further, the defendant has not sought any relief of declaration of the said Relinquishment Deed as null and void before any Court of law.
111. The onus to prove the present issue was upon the defendant.
CS NO.7664/16 & CS No. 7665/16 Page No. 90 /94The defendant has failed to prove that how withdrawal by plaintiff no.1 would also be binding upon the plaintiff No. 2. Further, it is clear from the relinquishment dated 31/03/2004 that the plaintiff number 1 Smt Kusum Dewan had already relinquished her share in favour of the plaintiff No. 2. Withdrawal of suit by plaintiff number 1, even if it is to be believed, would not operate upon the plaintiff No. 2 and even otherwise, when the plaintiff number 1 had already relinquished her share in favour of plaintiff No. 2, the plaintiff number 1 was left with no right in the suit property. Thus, it cannot be lawfully said that withdrawal of the suit by plaintiff number 1 would result in non maintainability of the present suit. Thus issue No. 8 is decided in favour of plaintiff and against the defendant.
112. Issue No. 9 of the main case and Issue No. 5 of the connected case "9. Whether the plaintiff is entitled to recover the Mesne profits, at what rate and to what amount? OPP"
"5. Whether the plaintiff is entitled to the relief claimed?"
The findings on this issue are consolidated with the relief sought by the plaintiffs in the connected matter.
On the basis of the above findings, it is held that the plaintiff is the lawful owner of the suit property and is therefore entitled to recover the possession of the suit property from the defendant.
CS NO.7664/16 & CS No. 7665/16 Page No. 91 /94The plaintiff has sought mesne profits amounting to Rs.1,44,000/- along with interest at the rate of 15% per annum from the date of decree till the date of payment. However, no cogent evidence has been adduced by the plaintiff to prove the same.
113. Section 2(12) of the CPC defines the mesne profits of property as meaning those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profit. Thus, what is to be the rate of mesne profits, is to be determined by evidence and is not a matter of contract. It is also a settled law applying the provisions of Section 57 and Section 114 of Indian Evidence Act, 1872 that while calculating the mesne profits, certain amount of guess work by the Court is inevitable and acceptable.
114. It is significant to mention here that the present suit was filed in the year 1990 and connected case in the year 2003. Such long course of litigation has a far-reaching, detrimental impact on the legal system. It not only clogs the Courts with unnecessary litigation but also delays the hearing of genuine cases that are patiently awaiting their turn to be addressed. Such delays undermine the efficiency of the judiciary, causing distress to litigants. Therefore, it is imperative that the advocates, being CS NO.7664/16 & CS No. 7665/16 Page No. 92 /94 officers of the Court, undertake a responsibility to preserve the integrity of the judicial process and ensure timely justice for those with legitimate grievances.
115. Since the defendants are held to be in unauthorized occupation and plaintiff is entitled to possession and also keeping in view that a very nominal amount has been sought as a relief by the plaintiff, considering the location of the suit property and its current market value, I am inclined to award consolidated damages in both the suit to the plaintiff @ Rs. 4000/- per month from the filing of the suit till handing over of the possession of the suit property. The plaintiff is also entitled to interest @ 6 % per annum from the date of filing of the suit till its realization.
116. Relief:
In view of the above discussion, the suit filed by plaintiff is decreed with the following reliefs:-
(i) A decree of Possession in respect of Ground Floor of Plot No. I-41, Jangpura Extension, New Delhi-110014.
(ii) Consolidated damages in both the suit to the plaintiff @ Rs. 4000/- per month from the filing of the suit till handing over of the possession of the suit property.
(iii) Plaintiff is also entitled to interest @ 6 % per annum from the date of filing of the suit till its realization.
(iv) Cost of the suit.CS NO.7664/16 & CS No. 7665/16 Page No. 93 /94
117. Pending applications if any, are disposed of accordingly.
118. Decree sheet be prepared accordingly. File be consigned to record room as per rules.
Digitally signedGOMA by GOMA DABAS GUPTA DABAS Date:
Announced in the open court on 2025.03.12
GUPTA 17:23:29
+0530
12.03.2025
(Goma Dabas Gupta)
District Judge-06
West District, Tis Hazari Courts,
Delhi/12.03.2025
CS NO.7664/16 & CS No. 7665/16 Page No. 94 /94