Delhi District Court
Shri Indrasan vs Shri Indrajeet on 26 August, 2017
IN THE COURT OF SH. DILBAG SINGH PUNIA
DISTRICT & SESSIONS JUDGE, NORTH DISTRICT, ROHINI,
DELHI
CS No. 58203/16
Shri Indrasan
S/o Sh. Ram Adhar @ Chhattar Singh,
R/o 25th Foota Road, Gali No. 13,
Mukundpur, Part2, Delhi 110042 .....Plaintiff
Versus
Shri Indrajeet
S/o Sh. Ram Adhar @ Chhattar Singh,
R/o Khasra No. 2010, 211,
Village Mukundpur Colony,
Part1, Gali No. 7, BlockB,
Delhi110042 .....Defendant
Date of Institution of case : 23.03.2012
Date of final arguments : 17.07.2017
Date of judgment : 26.08.2017
JUDGMENT
1. By this judgment, I shall dispose of a civil suit wherein plaintiff has requested for a decree for possession, permanent injunction, mesne profit alongwith interest and cost in respect of the property bearing Khasra No. 210, 211 situated in the area of Mukundpur, Delhi (hereinafter referred to as the "suit property").
Indrasan vs. Inderjeet Page : 1 of 45 CS No. 58203/16
2. Brief facts as disclosed from the plaint are that plaintiff and defendant are real brothers. They jointly purchased one plot measuring 150 square yards out of Khasra No. 210, 211 situated in the area of Mukundpur Delhi from Sh. Devi Dayal S/o Sattan, R/o T 33/24, Gulabi Bagh, Subzi Mandi, Delhi, who executed documents which stand registered with the office of Sub Registrar Delhi and are bearing registration No. 16624 Addl. Book No. 3, Volume No. 2895, on pages 171 on 09.07.1997.
3. It is stated that after purchase, plaintiff and defendant jointly raised construction over the area of 100 sq. yards and 50 sq. yards plot was left open. It was also agreed that plaintiff and defendant will be having equal share in the constructed portion of 100 sq. yards and open courtyard measuring 50 sq. yards. It is asserted that wife of defendant i.e. bhabhi of plaintiff is not on good terms with the wife of plaintiff. Due to paucity of space for residence, quarrels were taking place regularly between the plaintiff and defendant. Wife of plaintiff used to remain unwell and ill and therefore, defendant requested the plaintiff to permit him to stay in peace in constructed portion for some time to which he agreed and shifted to a rented accommodation in Azadpur near Subzi Mandi but he (plaintiff) off and on had been Indrasan vs. Inderjeet Page : 2 of 45 CS No. 58203/16 visiting the suit property as owner.
4. It is averred that plaintiff and defendant had agreed that suit property will not be sold/transferred without written consent of each other. It was also agreed that defendant shall not raise any construction in the courtyard (open portion).
5. It is stated that defendant has become dishonest and wants to grab the entire suit property with malafide intention and on 15.07.2007, claimed that he is in possession of all original documents and will sell the open space to someone. He refused to agree to the request of plaintiff that property is owned by them on 50:50 basis and he has no right to sell/transfer the same. He (defendant) under the garb of manpower is hellbent to sell/transfer the open portion and is not listening to reason that he is not the sole owner and cannot receive consideration for sale.
6. It is further stated that on 31.07.2007 at about 5 PM, the plaintiff visited the premises and came to know that defendant is going to negotiate with someone for selling/transferring the open land measuring 50 sq. yards to someone and also going to raise Indrasan vs. Inderjeet Page : 3 of 45 CS No. 58203/16 construction on the remaining portion which is not justified. He is threatening him (plaintiff) with dire consequences and his conduct is illegal and arbitrary. It is stated that the plaintiff approached the local police and told the entire facts but police has not taken any action and has advised him to approach the civil court for proper relief.
7. It is stated that the cause of action firstly arose in favour of plaintiff when the property was purchased in the joint names in 1997; it arose when suit property was got constructed with joint funds and it arose on 15.10.2007 and 31.10.2007 when the defendant extended threats to sell/transfer of the property and the same is still continuing.
8. It is stated that the cause of action for instituting the suit has arisen in Delhi; suit property is situated in Delhi; parties to the suit are residing and working for gain at Delhi and therefore, this court has territorial jurisdiction.
9. It is stated that a suit for mandatory and permanent injunction before Senior Civil Judge, Delhi bearing No. 707/2007 was filed. In the proceedings before ld. Civil Judge Ms. Shunali Gupta, on Indrasan vs. Inderjeet Page : 4 of 45 CS No. 58203/16 12.02.2008, the defendant had undertaken that he shall not transfer/sell the suit property till final disposal of the suit and accordingly application u/o 39 Rule 1 & 2 CPC was allowed. On 11.01.2012, ld. Counsel for the plaintiff Sh. S.K. Sharma had withdrawn that civil suit with liberty to file fresh but without information to the plaintiff. He had advised to file a recovery suit. He informed him about withdrawal after two weeks of withdrawal. He was advised to file a fresh suit.
10. It is further stated that the property falls in category 'H' as per notification dated 15.11.2011 bearing notification No. F.1(152)/Regn.Br./HQ/Div.com./2011/919, and since the value of suit property measuring 75 sq. yards i.e. 67.5 sq. meter comes to Rs. 10,50,000/ (approximately), the suit is valued for the purpose of court fee and pecuniary jurisdiction at Rs. 10,50,000/ and prescribed court fee has been affixed for each relief separately.
11. In the written statement, defendant has taken preliminary objections visavis absence of cause of action; suit being based on false and frivolous grounds; suit having been filed malafidely; plaintiff having not come to the court with clean hands; this court having no Indrasan vs. Inderjeet Page : 5 of 45 CS No. 58203/16 jurisdiction; suit being hit by Order 7 Rule 11, Section 41(a) of the Specific Relief Act; suit being based on forged and fabricated documents and suit not being maintainable for the reason that defendant is sole and absolute owner.
12. It is submitted that the land/property measuring 150 sq. yards was purchased by defendant from Sh. Devi Dayal S/o Sh. Sattan on the basis of GPA, Agreement to sell, affidavit, receipt all dated 09.07.1997. Defendant used to treat the plaintiff like his own son. Plaintiff, being a clever person, got prepared forged and fabricated registered GPA and registered Will in his favour by changing the father's name and fraudulently took the signatures of seller on the registered GPA and Will dated 09.07.1997 with malafide intention to include his share in the suit property. It is also claimed that plaintiff mentioned name of his father as Chhattar Singh, whereas the name of their father is Shri Ram Adhar Yadav. In fact, Shri Chhatter Singh was the landlord of the parties and was owner of property no. G3/81 A, Model Town, Delhi, where they had been residing as a tenant at that time. The defendant presumes that plaintiff must have procured the forged the fabricated documents to commit a fraud and forgery upon the money lenders from whom he used to take loans from time Indrasan vs. Inderjeet Page : 6 of 45 CS No. 58203/16 to time by pledging the same and the said documents have no value in the eyes of law.
13. It is claimed that defendant is the sole and absolute owner of property and the same was purchased by him from his own funds and therefore, he is having every independent right, title and interest thereupon; the plaintiff did not contribute even a single naya paisa for purchase of the property and at the time of purchase of the suit property, the plaintiff was not earning anything. It is submitted that defendant brought the plaintiff from his native village for doing some good job but due to his acts and deeds, he remained jobless and was living at mercy of defendant. He even had gone into a huge debt to the tune of Rs. 4,60,000/ and the financiers/friends who had given loans had been visiting his (defendant's) house and used to abuse and misbehave with him (defendant). They even had threatened that they are going to lodge an FIR against the plaintiff as he is not returning their hard earned money. On asking about the said loans, plaintiff replied that he had taken the loan from them and loan money had been spent on drinking and gambling. Being his brother and to save his life, defendant had agreed to return the loan of Rs. 4,60,000/ which he (plaintiff) had taken from KTC Khurana Trading Company, Indrasan vs. Inderjeet Page : 7 of 45 CS No. 58203/16 Ganda Ram and Company, Balaji Food Company, S.D.S. Sevan Das and Service and several other traders in presence of Nathu Ram Nagar, Vinod Kumar, Bablesh, Pappu Yadav, Lal Bahadur Yadav, Mukteshwar Yadav, Hasanand etc. It is claimed that it was agreed that defendant will sell out 50 sq. yards of land out of 150 sq. yards and from the sale proceeds of the same, the loan would be returned to moneylenders. That it was also agreed that plaintiff would not reside with defendant and will not be having any kind of relation with him in future and will not have any right, title or interest in the suit property of any kind whatsoever. That defendant has severed all relations with plaintiff.
14. It is further submitted that after selling of 50 sq. yards, the entire loan of the plaintiff could not be returned and as such defendant had to spend his own savings and gold ornaments/jewellery of his wife and only then entire loan was returned. Plaintiff thereafter left the suit property and shifted somewhere and since then there has been no relationship between the parties.
Indrasan vs. Inderjeet Page : 8 of 45 CS No. 58203/16
15. It is further submitted that after about four years, the plaintiff turned dishonest and filed suit by taking advantage of mention of his name in the transfer documents as he wanted to grab the suit property. He has no contribution in purchase of the suit property. He has not spent any amount in raising construction or renovation of the same. It is claimed that the defendant had to suffer huge monetary loss to the tune of Rs. 4,60,000/ as well as loss of reputation, goodwill and prestige in the society/locality.
16. In parawise reply on merits, preliminary objections have been reiterated and assertions of plaint have been controverted. Defendant has submitted that at the time of purchase of the suit property, the right and share in the suit property/land was in existence as family members.
17. In the replication, plaintiff has controverted the assertions of the defendant and reiterated his submissions of the plaint.
18. From the pleadings of the parties, my ld. Predecessor framed the following issues:
1. Whether defendant is the sole owner of the suit property as stated in the WS of the defendant? OPD Indrasan vs. Inderjeet Page : 9 of 45 CS No. 58203/16
2. Whether the plaintiff is entitled to a decree of possession of the suit property as prayed in th para (a) of prayer clause of the plaint? OPP
3. Whether the plaintiff is entitled to damages and occupation charges? If so, then at what rate and for what amount? OPP
4. Relief
19. The Plaintiff, in support of his case, has examined himself as PW1; Sh. Lalman as PW2; Sh. Rajman as PW3 and Sh. Dinesh Chand Mathuria, Data Entry Operator, Office of Sub RegistrarI, Kashmiri Gate, Delhi as PW4. Per contra, defendant has examined himself as DW1; Sh. Pappu Yadav as DW2; Sh. Lal Bahadur Yadav as DW3; Sh. Mukteshwar Yadav as DW4; Sh. Hasanand as DW5; Sh. R.K. Motwani as DW6; Sh. Nathu Ram Nagar as DW7 and Sh. Vinod Nagar as DW8 to prove his case.
20. PW1 Shri Indrasan has deposed on the lines of plaint through his affidavit Ex.PW1/A. He has relied upon the documents visavis certified copies of documents executed in favour of the parties as Ex.PW1/1; site plan as Ex.PW1/2 and certified copies of proceedings Indrasan vs. Inderjeet Page : 10 of 45 CS No. 58203/16 in CS No. 707/07 as Ex.PW1/3.
21. When crossexamined by Sh. Anil Kumar Singh, ld. Counsel for defendant, plaintiff has testified that he has studied upto 10th class and came to Delhi in 1984 from his native village i.e. District Devria, UP. He deposed that defendant was living in Delhi since 1978. He was working in Azadpur Mandi, Delhi as Mashakhor (sale and purchase of fruits) after coming to Delhi. He deposed that he has/had no liability to pay Rs. 4,60,000/ towards KTC Khurana Trading Co., Ganda Ram & Co., Balaji Food Co., SDS Sewan Dass & Sons and other traders since 2004 prior thereto or afterwards. He further testified that no amount was due towards Sewan Dass & Sons, Balaji Food Co. He also testified that he had paid a sum of around Rs. 88.5 lacs to KTC Khurana Trading Co. and Ganda Ram & Co.
22. In further crossexamination, PW1 deposed that he had not signed at point A in Mark Z. He further deposed that suit property was purchased in 1997 and a total amount of Rs. 2,15,000/ was paid for purchase of the same. He deposed that he had signed on agreement to sell but was not having copy of agreement to sell. He explained that all the documents were retained by defendant. He Indrasan vs. Inderjeet Page : 11 of 45 CS No. 58203/16 denied the suggestions that suit property was purchased by the defendant from his own funds or that he has no right, title or interest in the suit property or that defendant sold half of the property and cleared the dues of other shop keepers which he was liable to pay as per MarkZ or that he has filed the present suit against the defendant to extort money to clear the liability and debts which he owned to shopkeepers in the market or that he was deposing falsely.
23. PW2 Sh. Lalman, who is real cousin of parties, has proved his affidavit Ex.PW2/A. He deposed that both the parties were living jointly since childhood and had joint business; as per his knowledge, suit property was purchased from joints funds of both parties since some agriculture land/property was purchased in his native village. He further deposed that both parties became separate in December 2004 and after that he came to know that defendant has become dishonest and does not want to give share of plaintiff and wants to usurp plaintiff's share. He has deposed that plaintiff treated the defendant as his father.
24. When crossexamined by Sh. Anil Kumar Singh, ld. Counsel for defendant, PW2 has testified that he is illiterate and does not know as Indrasan vs. Inderjeet Page : 12 of 45 CS No. 58203/16 to what is written in his affidavit. He deposed that he had put his thumb impression on affidavit 34 months ago. He further testified that he does not know as to what is exact address of suit property but asserted that the said property is situated in Mukundpur, Delhi. He admitted that he has no knowledge about purchase of suit property either by plaintiff or defendant. He deposed that family partition (bantwara) took place between the parties 3/4 years ago but cannot say as to what share of property was partitioned between them. He further deposed that at that time, some villagers were present and he was also present there and no decision had taken place between the parties. He deposed that at present, plaintiff is doing the business of selling of spring (patti) of vehicles; at the time of family partition, parties were doing business of selling oranges and he does not know about income of the parties till date. He further deposed that he had come to the court for disclosing the facts that the suit property had been purchased jointly since the work and business of parties was together. He further deposed that at the time of execution of papers of suit property, he was not present there. He deposed that he does not know as to who was seller of suit property. He also deposed that he does not know about sale consideration of suit property. He denied that he was deposing falsely.
Indrasan vs. Inderjeet Page : 13 of 45 CS No. 58203/16
25. PW3 Sh. Rajman, who is also real cousin of parties, has proved his affidavit Ex.PW3/A. He deposed on the identical lines as that of PW2. When crossexamined by Sh. Anil Kumar Singh, ld. Counsel for defendant, PW3 deposed that he has studied upto 8th standard pass and does not know as to what was written in his affidavit. He deposed that he had put his signatures on the affidavit 34 month ago. He further deposed that he does not know the exact address of the suit property but it is situated in Village Mukundpur, Delhi. He deposed that the said property was purchased in the eyar 1990 or 1996. He deposed that he does not know as to when family partition (bantwara) took place between the parties. He deposed that he was not present at the time of execution of papers for purchase of suit property. He denied that he was deposing falsely.
26. PW4 - Sh. Dinesh Chand Mathuria, Data Entry Operator, Office of the Sub RegistrarI, Kashmiri Gate, Delhi, proved on record Will dated 09.07.1997 (registered vide register No. 16624 Additional Book No. 3,Vol. No. 2895 on page no. 171) as Ex.PW4/A and General Power of Attorney dated 09.07.1997 (registered vide Register No. 16727 Vol. No. 4409, Book No. 4 from page no. 46 to 47) as Ex.PW4/B. When Indrasan vs. Inderjeet Page : 14 of 45 CS No. 58203/16 crossexamined by Sh. D.R. Jain, ld. Counsel for the defendant, PW4 testified that he had joined the office in 2011. He deposed that whenever the parties visit the office of Registrar for registration of documents, their names, age and their father's name are asked and the same are verified from the original identity documents.
27. DW1 Sh. Inderjeet, has deposed on the lines of written statement through his affidavit Ex.DW1/A. He has proved documents visavis General power of attorney, agreement to sell and receipt all dated 09.07.97 as Ex.DW1/1A, Ex.DW1/1B & Ex.DW1/1C respectively having been executed in his favour by Sh. Devi Dayal. He has also proved General power of attorney, affidavit, agreement to sell and receipt all dated 25.09.1990 as Ex.DW1/2A, Ex.DW1/2B, Ex.DW1/2C & Ex.DW1/2D respectively executed in favour of Sh. Devi Dayal by Sh. Rohtash. He also proved agreement to sell, receipt, Will and General Power of Attorney all dated 24.05.1989 as Ex.DW1/3A, Ex.DW1/3B, Ex.DW1/3C & Ex.DW1/3D respectively executed in favour of Sh. Rohtash by Sh. Hari Om Mehra. He further proved Panchayati faisla dated 05.02.2005 executed by plaintiff as Ex.DW1/4; payment receipts dated 20.06.2008, 14.02.2005 & 07.02.2005, 20.06.2008 as Ex.DW1/5A to Ex.DW1/5D respectively;
Indrasan vs. Inderjeet Page : 15 of 45 CS No. 58203/16 superdagi receipt dated 08.02.2005 as Ex.DW1/6; death certificate of mother of parties as Ex.DW1/7 and complaint made to SHO, Azadpur by plaintiff as Ex.DW1/8.
28. When crossexamined by Sh. K.K. Singh, ld. Counsel for plaintiff, DW1 admitted the certified copy of his written statement as Ex.DW1/P1 filed in the court of Sh. Prashant Kumar. He denied that his father's name was shown in the Electoral Roll of 199698 as Chattar Singh. He admitted that the Electoral roll of 1998 highlighting the number of defendant at no. 805 is Ex.DW1/P2. He denied that he was residing in the house of Vinod Nagar in the year 1998. He volunteered that at that time, he was residing at Sarai Pipalthala on the top floor and the plaintiff was residing on the ground floor. He deposed that they resided together till 2005 in that house and volunteered that plaintiff vacated thereafter. He admitted that document Ex.DW1/A was notarized at Tis Hazari. He admitted that he is President of the Nagar Maha Sabha. He admitted that he had sold 50 sq. yards of land out of 150 sq. yards. He volunteered that he had sold it after panchayat had been convened. He denied the suggestion that there was no liability due on plaintiff at that time and all the receipts filed by him are false. He denied the suggestion that Indrasan vs. Inderjeet Page : 16 of 45 CS No. 58203/16 document Ex.DW1/A is a false and fabricated document.
29. DW2 Sh. Pappu Yadav has deposed through his affidavit as Ex.DW2/A. He has deposed on the identical lines of written statement and has stated that he was present at the time of Panchayati Faisla dated 05.02.2005. He deposed that he is permanent resident of Delhi and knows both the parties. He further deposed that due to nefarious acts and deed of plaintiff, plaintiff had gone into a large amount of debts to the tune of Rs. 4,60,000/ and financers had been visiting and abusing the defendant and they were threatening the parties that they are going to lodge an FIR against plaintiff as he was not returning their money. On questioning, plaintiff replied to defendant that he had taken loan and spent on drinking and gambling. Being brother of plaintiff, defendant had agreed to return his loan amount which was taken from KTC Khurana Trading Company, Ganda Ram and Company, Balaji Food Company, SDS Sevan Das and Service and several other traders in presence of Nathu Ram Nagar, Vinod Kumar, Bablesh, Pappu Yadav, Lal Bahadur Yadav, Mukteshwar Yadav, Hasanand etc. and it was settled that defendant will sell out 50 sq. yards out of 150 sq. yards of the suit property and from sale proceeds thereof, the loan would be returned. It was also settled that plaintiff Indrasan vs. Inderjeet Page : 17 of 45 CS No. 58203/16 would not live with him and would have not any right, title, or interest in the suit property and the defendant had severed his relations. He further deposed that at the time of giving of sum of Rs.460000/ to the plaintiff, a panchayat was held on 05.02.2005 in presence of abovesaid persons including him and it was decided that plaintiff would leave the suit premises and he left the suit premises and shifted somewhere else. At the time of execution of panchayati faisla, he alongwith Nathu Ram Nagar, Hasanand, R.K. Motwani, Lal Bahadur yada, Mukeshwar Yadav, Vinod Nagar, and plaintiff including him were present. He deposed that the said panchayati failsa was made before him and in their presence.
30. When crossexamined by Sh. K.K. Singh, ld. Counsel for plaintiff, DW2 testified that he knows Indrasan for the last twenty years. He admitted that he is General Secretary of Yadav Mahasabha and Inderjeet Yadav is its President. He could not tell exact year but both the parties were doing business together till some time. He further deposed that only when there are long dealings between the parties, only then signatures were obtained otherwise there are only oral transactions. He could not tell the year when they had separated. He deposed that he was present when quarrel had taken place. He Indrasan vs. Inderjeet Page : 18 of 45 CS No. 58203/16 deposed that he had also signed the panchayat faisla. He deposed that he had read panchayat faisla before signing. He testified that he does not remember as to what was written therein. He denied the suggestion that panchayat faisla was not written in the presence of plaintiff and he had conspired with defendant and put his signatures on it.
31. DW3 Sh. Lal Bahadur Yadav has deposed through his affidavit as Ex.DW3/A. He deposed on the identical lines as that of DW2. When crossexamined by Sh. K.K. Singh, ld. Counsel for the plaintiff, DW3 testified that he knows both parties for the last many years. He could not tell till what time they had worked together. He could not tell as to when they had separated. He admitted that he is treasurer of Yadav Mahasabha. He admitted his signatures at point DW3/X1 on Ex.DW1/1A. He deposed that this document was executed at Dealer's House in Mukundpur. He deposed that he does not remember the year of execution. He deposed that he had not signed panchayati faisla but he was aware of it and it was written in 2008 in Model Town. He denied the suggestion that there was no panchayati faisla and it was fabricated lateron.
Indrasan vs. Inderjeet Page : 19 of 45 CS No. 58203/16
32. DW4 Sh. Mukteshwar Yadav has deposed through his affidavit as Ex.DW4/A. He deposed on the identical lines as that of DW2 & DW3. When crossexamined by Sh. K.K. Singh, ld. Counsel for the plaintiff, DW4 testified that he had studied upto 9th class. He deposed that he does not know his date of birth. He deposed that suit property was purchased in 1993 and he was 8/9 years old at that time. He deposed that he was two months old when his father had died. He admitted that after death of his father, his mother got married to his Chacha Indrajeet. He deposed that he can not tell as to when he came to Delhi. He deposed that he can not tell since when he had been staying in Delhi. He deposed that his signatures are there in panchayati faisla. He denied the suggestion that there was no panchayati faisla and it was fabricated lateron.
33. DW5 Sh. Hasanand has deposed through his affidavit Ex.DW5/A. He deposed on the identical lines as that of DW2 to DW4. When crossexamined by Sh. K.K. Singh, ld. Counsel for the plaintiff, DW5 testified that Balaji Fruit Company and Guru Nanak Fruit Traders are being owned and run by him. He deposed that plaintiff and defendant had been doing business with him since 2002. He deposed that he used to maintain ledger accounts of transactions of Indrasan vs. Inderjeet Page : 20 of 45 CS No. 58203/16 plaintiff and defendant. He deposed that plaintiff and defendant separated in 2005; his staff used to collect payment from both of them; he used to file income tax return and he was having copies of ITRs for the period 2002 to 2005. He deposed that document Ex.PW1/5 dated 20.06.2008 was issued by him. He deposed that he mentioned in his ITRs about this money of Ex.DW1/5 and he can produce its copies. He deposed that he knew the contents of panchayati faisla signed by him. He denied the suggestion that panchayati faisla was forged and fabricated and Ex.DW1/5 is a concocted document. He deposed that he was not having copies of ITR for the period 2010 to 2016 but had kept copies of previous ITRs prior to that period.
34. DW6 Sh. R.K. Motwani has deposed through his affidavit as Ex.DW6/A. He deposed on the identical lines as that of DW2 to DW5. When crossexamined by Sh. K.K. Singh, ld. Counsel for the plaintiff, DW6 testified that he owns and runs Shivan Dass & Co. and Shivan Dass & Sons. He deposed that both plaintiff and defendant were running their separate business with him since beginning. He deposed that he used to maintain ledger account of transactions. He deposed that he had stopped dealing with Indrasen in the year about Indrasan vs. Inderjeet Page : 21 of 45 CS No. 58203/16 2004 or 2005 when he stopped making payment to him. He deposed that he had not kept the record older than 10 years. He denied the suggestion that Ex.DW1/5B is forged and fabricated document. He deposed that he would have shown the money shown in Ex.DW1/5B in his income tax return. He further deposed that 23 employees were working with his company when he had transactions with plaintiff. He deposed that transactions during trading period with plaintiff were also done by his staff and by him and receipts of the same were also issued by them. He denied the suggestion that receipt Ex.DW1/5B was forged and fabricated and there was no dealings with plaintiff by him.
35. DW7 Sh. Nathu Ram Nagar has deposed through his affidavit as Ex.DW7/A. He deposed on the identical lines as that of DW2 to DW6. When crossexamined by Sh. K.K. Singh, ld. Counsel for the plaintiff, DW7 testified that he knew Indrajeet for the last 2530 years. He deposed that he knew Indrasan for the last 1012 years. He denied the suggestion that Indrajeet was working with him. He volunteered that he was working in Azadpur Mandi. He deposed that Indrajeet was not residing with him and he was residing in Kewal Park, Delhi. He deposed that Chhattar Singh is his Chacha. He deposed that Indrasan vs. Inderjeet Page : 22 of 45 CS No. 58203/16 plaintiff and defendant were residing together. He deposed that while Indrajeet was working, Indrasan was not working as he had recently came to Delhi. He deposed that they both started working lateron; they separated in the year 2005 in their business completely and Indrajeet had purchased the suit property. He deposed that he does not know in which year he had purchased the suit property. He deposed that Ex.DW1/4 bears his signatures at point X. He denied the suggestion that settlement Ex.DW1/4 was not arrived in the presence of Indrasan.
36. DW8 Sh. Vinod Nagar has deposed through his affidavit as Ex.DW8/A. He deposed on the identical lines as that of DW2 to DW7. When crossexamined by Sh. K.K. Singh, ld. Counsel for the plaintiff, DW8 admitted that he is Patron of Yadav Maha Sabha. He deposed that he knew plaintiff since 20022003. He deposed that Ex.DW1/4 bears his signatures. He deposed that all the witnesses who signed Ex.DW1/4 were present at that time. He admitted that his name was mentioned in Ex.DW1/P2 i.e. Electoral Roll of 1998, Model Town Constituency at point A. He deposed that he can not say about the entry made at Serial No. 805 of same Electoral Roll Ex.DW1/P2. He deposed that he does not know about the business of plaintiff and Indrasan vs. Inderjeet Page : 23 of 45 CS No. 58203/16 defendant. He deposed that he came to know about joint ownership of suit property of plaintiff and defendant on the day when panchayati faisla was held. He deposed that Indrajeet has never worked for him.
37. Arguments were heard at the bar. I have perused the records and considered the submissions.
38. My issuewise findings are as under: Issue No.1: Whether the defendant is the sole owner of the suit property as stated in the WS of the defendant? OPD The onus was on the defendant to prove that he is the sole owner of the suit property. In support of his claim, the defendant proved on record the documents vis General power of attorney, agreement to sell and receipt all dated 09.07.1997 as Ex.DW1/A, Ex.DW1/B and Ex.DW1/C respectively executed in his favour by Sh. Devi Dayal. He also proved on record documents dated 25.09.1990 (GPA, affidavit, agreement to sell and receipt Ex.DW1/2A, Ex.DW1/2B, Ex.DW1/2C and Ex.DW1/2D executed in favour of Sh. Devi Dayal by Sh. Rohtash. He also proved on record the documents vis agreement to sell, receipt, will and GPA dated 24.05.1989 Indrasan vs. Inderjeet Page : 24 of 45 CS No. 58203/16 Ex.DW1/3A, Ex.DW1/3B, Ex.DW1/3C and Ex.DW1/3D respectively executed by Sh. Hariom Mehra in favour of Sh. Rohtash. Sh. Inderjeet (defendant) also relied upon a panchayati faisla dated 05.02.2005 allegedly executed by plaintiff as Ex.DW1/4 and payment receipts dated 20.06.2008, 14.02.2005, 07.02.2005 and 20.06.2008 as Ex.DW1/5A, Ex.DW1/5B, Ex.DW1/5C and Ex.DW1/5D respectively He also relied upon and proved on record a superdagi receipt dated 08.02.2005 executed by the plaintiff as Ex.DW1/6. When crossexamined by ld. Counsel for the plaintiff, he testified that he was residing with the plaintiff till 2005 in a house at Sarai Pipalthala. He testified in his further crossexamination that he had sold 50 sq. yards of land out of 150 sq. yards after the settlement reached at panchayat.
39. DW2 Sh. Pappu Yadav deposed through his affidavit Ex.DW2/A. He deposed that due to nefarious acts and deeds, the plaintiff had got indebted to the tune of Rs. 4,60,000/ and the lenders/financiers had been visiting house of parties and abusing the defendant and threatened to lodge an FIR against the plaintiff if their amount was not returned. He further testified that the plaintiff had admitted having taken loan from KTC Khurana Trading Company, Genda Ram Indrasan vs. Inderjeet Page : 25 of 45 CS No. 58203/16 and Company, Balaji Fruits Company, SDS Seven Dass and Services and other traders and it was settled in a panchayat convened by the defendant that 50 sq. yards of the land would be sold out of the 150 sq. yards of the suit property and the loan will be repaid from the sale proceeds. When crossexamined by ld. Counsel for the plaintiff, he could not tell as to since when the parties were doing business together or as to their long dealings. He could not testify as to when they had got separated. He testified having signed the panchayat faisla. He, however, did not recollect the contents of the settlement.
40. DW3 Sh. Lal Bahadur Yadav also deposed on the similar lines through his affidavit Ex.DW3/A. When crossexamined by ld. Counsel for the plaintiff, he admitted his signatures on Ex.DW3/X1. In his further crossexamination, he, however, testified that he had not signed the panchayati faisla.
41. DW4 Sh. Mukteshwar Yadav also deposed on the identical lines as that of DW2 and DW3. When crossexamined by ld. Counsel for the plaintiff, he even did not recollect his date of birth. He further testified that suit property was purchased when he would have been 8/9 years old. He even did not recollect as to when he had come to Indrasan vs. Inderjeet Page : 26 of 45 CS No. 58203/16 Delhi.
42. DW5 - Sh. Hasanand also deposed on the same lines as that of DW2, DW3 and DW4. When crossexamined by ld. Counsel for the defendant, he testified that he owns and runs Balaji Fruit Company and Guru Nanak Fruit Traders. He testified in further cross examination that the plaintiff and defendant had been having business dealings with him since 2002. He deposed that he maintained the ledger account/transactions with plaintiff and defendant. He further testified that plaintiff and defendant got separated in the year 2005. He denied that no panchayat was convened. He denied that Ex.DW1/5 dated 20.06.2008 has been concocted.
43. DW6 - Sh. R.K. Motwani deposed on the same lines as that of DW2 to DW5. In his crossexamination, he testified that he owns and runs the firms Shiven Dass and Company and Shivan Dass and Sons. He testified in further crossexamination that both the plaintiff and defendant were running their separate business with him and he was maintaining their ledger accounts. He further deposed that he had stopped dealings with the plaintiff in the year 2004/2005.
Indrasan vs. Inderjeet Page : 27 of 45 CS No. 58203/16
44. DW7 - Sh. Nathu Ram Nagar deposed through his affidavit Ex.DW7/A on the same lines as that of DW2 to DW6. When cross examined by ld. Counsel for the plaintiff, he testified that he knows the parties and that they were residing together. The parties started working together and separated in the year 2005. He deposed in further crossexamination that the defendant had purchased the suit property.
45. DW8 - Sh. Vinod Nagar deposed on the same lines as that of DW2 to DW7 through his affidavit Ex.DW8/A. When crossexamined by ld. Counsel for the plaintiff, he testified that he knew the plaintiff since 200203. He also testified that all the witnesses who signed Ex.DW1/4 were present at that time. He could not say anything about entry at Serial No. 805 of Electoral Roll Ex.DW1/P2.
46. Defendant through his own testimony as well as through the testimony of DW2 to DW8 has tried to establish on record that he is the sole owner of the suit property and the plaintiff (his younger brother) stayed with him for some time but had carried on his business separately. He also tried to establish on record that the Indrasan vs. Inderjeet Page : 28 of 45 CS No. 58203/16 plaintiff had got indebted and had to repay the amount to Ganda Ram and Company, Shivan Dass and Sons (DW6 Sh. R.K Motwani), Khurana Brothers, Balaji Fruit Company (DW5 Hasanand), and that he had sold 50 sq. yards of vacant plot of land out of 150 sq. yards just to repay the loan of plaintiff (out of love and affection) and that the said fact was recorded in Panchayati settlement Ex.DW1/4.
47. The plaintiff, on the other hand, examined himself to prove that he is the joint owner of the suit property. He proved on record the Will dated 09.07.1997 Ex.PW4/A executed by Sh. Devi Dayal in his favour and in favour of defendant. He also proved on record the General Power of Attorney dated 09.07.1997 Ex.PW4/B executed by Sh. Devi Dayal in his and his brother i.e. defendant's favour. Both these documents - Will and GPA are registered documents with the office of Sub Registrar and have been proved on record by PW4 Sh. Dinesh Chand Mathuria, Data Entry Operator, Office of Sub RegistrarI, Kashmere Gate, Delhi.
48. When crossexamined by ld. Counsel for the defendant, plaintiff testified that he had incurred no liability to pay Rs. 4.60 lacs towards Indrasan vs. Inderjeet Page : 29 of 45 CS No. 58203/16 KTC Khurana Trading company, Ganda Ram and Company, Balaji Fruit Company, SDS Shivan Dass and Sons or any other traders till the year 2004. He specifically testified that no amount was due towards Shivan Dass and Sons or Balaji Fruit Company. He denied having signed the document MarkZ. He testified in his further cross examination that he had signed the agreement to sell.
49. The Plaintiff also examined Sh. Lalman as PW2 and Sh. Rajman as PW3 to prove that he was running business with defendant jointly and that suit property was purchased from their joint funds.
50. The plaintiff has relied upon the documents Ex.PW4/A (Will) and Ex.PW4/B (GPA) executed by Sh. Devi Dayal in favour of the parties. Both these documents are dated 09.07.1997 are duly registered with the office of Sub RegistrarI, Kashmere Gate, Delhi. The defendant, on the other hand, has relied upon the documents dated 09.07.1997. All the documents relied upon by him vis GPA, agreement to sell, affidavit, etc. are only notarised and not registered. The claim of the defendant that the documents relied upon by him are genuine and that the plaintiff has forged the documents clearly has no merits in the eyes of law and facts of the case. The documents Indrasan vs. Inderjeet Page : 30 of 45 CS No. 58203/16 relied upon by the plaintiff have been executed and registered in the office of Sub Registrar. The possibility of any manipulation in the documents of 09.07.1997 just cannot arise. Rather it is the defendant who apparently has got the documents manipulated or forged in connivance or without connivance of Sh. Devi Dayal. It was simply not possible for Sh. Devi Dayal to have executed two set of documents one in favour of defendant and the other set of documents in favour of the plaintiff and defendant (jointly) on the same day. It is also not possible that the defendant would not have appeared before the Sub Registrar. His photograph is affixed on the GPA Ex.PW4/B. It is, therefore, crystal clear that the defendant manipulated the documents and got the fresh documents in back date with or without connivance of Sh. Devi Dayal. It is well settled principle of law that it is the registered document that has value in the eyes of law as compared to the notarised documents. There is a presumption that a registered document has been validly executed and onus of proof will be on those who want to offset the above presumption [para 27 of Prem Singh vs. Birbal 2006 (2) KLT 863 (SC)]. Defendant in his written statement of earlier civil suit, has admitted about the name of plaintiff being there in the ownership documents. I am, therefore, convinced that the defendant has manipulated the documents and Sh. Devi Indrasan vs. Inderjeet Page : 31 of 45 CS No. 58203/16 Dayal in fact executed the document in respect of the suit property in favour of both the parties. The defendant is, therefore, not the sole owner but the plaintiff is joint owner of the suit property with the defendant.
51. The version of defendant that plaintiff had got indebted to the tune of Rs. 4.60 lacs has not been proved by the defendant in accordance with law. The alleged lenders Ganda Ram and Company, Shivan Dass and Sons (DW6 Sh. R.K Motwani), Khurana Brothers, Balaji Fruit Company (DW5 Hasanand) have not produced their ledger of accounts regarding their alleged transaction with the plaintiff. Further, a perusal of confirmation issued by Ganda Ram and Company Ex.DW1/5A reveals that this confirmation has been issued on 20.06.2008. The alleged receipt of Rs. 65000/ is also not in accordance with provisions of law. The receipt of Rs. 70000/ issued by Shivan Dass and Sons dated 14.02.2005 also does not inspire any confidence since it does not show as to on what account the amount has been received. Further, the receipt Ex.DW1/5C issued by Khurana Brothers dated 07.02.2005 does not even state that amount has been received. It simply mentions the amount. The confirmation dated 20.06.2008 issued by Balaji Fruit Company in respect of the Indrasan vs. Inderjeet Page : 32 of 45 CS No. 58203/16 sum of Rs. 67000/ on 15.02.2005 also does not inspire any confidence. All these four documents vis Ex.DW1/5A, Ex.DW1/5B, Ex.DW1/5C and Ex.DW1/5D do not reveal that any amount was due from the plaintiff. It also does not show that there has been discharge of any liability on his behalf. I am, therefore, not inclined to accept these four documents Ex.DW1/5A to Ex.DW1/5D.
52. The panchayati faisla Ex.DW1/4 has been disputed by the plaintiff. He has disputed his signatures. The defendant has not proved his signatures as required by law. The document clearly is a forged document in collusion with the alleged lenders/traders. This document Ex.DW1/4 reveals that Indrasan (plaintiff) allegedly promised before the members of alleged panchayat that he would vacate the suit property/house and handover the title documents of the property to his brother Inderjeet (defendant). This alleged promise itself shows that the document Ex.DW1/4 (panchayati faisla) is forged and fabricated. If the plaintiff was not coowner of the suit property, he would not have been in possession of the title documents and he would not have promised to handover the title documents to the defendant. Recital in Ex.DW1/4 regarding handing over of documents of title goes to prove that plaintiff was the joint owner.
Indrasan vs. Inderjeet Page : 33 of 45 CS No. 58203/16
53. The superdagi receipt Ex.DW1/6 relied upon by defendant also strengthens the case of the plaintiff. This receipt reveals that on 08.02.2005, the plaintiff handed over the possession of his portion of house/plot and complete documents of suit property to the defendant (Inderjeet) in pursuance of alleged panchayati faisla dated 05.02.2005. He also stated that since 08.02.2005, he would have nothing to do with the house/suit property and title documents. This handing over receipt (superdagi receipt) signed by both the parties (plaintiff and defendant ) in presence of witnesses - Sh. Vinod Nagar, Hasanand and Nathu Ram Nagar (the witnesses to the alleged panchayati settlement) itself makes it clear that the plaintiff is joint owner of the suit property. Had he not been the joint owner, he would not have stated that he was handing over the complete title documents and his portion of the suit property to the defendant.
54. The case of the defendant even otherwise does not inspire confidence. He would not have sold 50 sq. yards of land out of 150 sq. yards, bike of plaintiff and other belongings just to repay the alleged amount owed by the plaintiff. His plea of natural love and affection is not tenable in view of the contradictory stands. The fact that he sold the portion of the house itself shows that the plaintiff is/was joint Indrasan vs. Inderjeet Page : 34 of 45 CS No. 58203/16 owner of the suit property.
55. The case of the defendant contains irreconcilable contradictions and is not inspiring confidence at all. Some of them are being adverted to. In the written statement of the previous suit bearing no. 707/2007 filed in the court of Sh. Prashant Kumar, stand of the defendant was different than the stand taken in the present case and the same also exposes the defendant and fortifies the conclusion arrived at about the documents having been manipulated by the defendant. It was the case of the defendant at page 2 first para 10th line that he mentioned the name of the plaintiff in the documents due to love and affection despite their being no contribution. At page 5, defendant took the stand that after passing of four years, plaintiff wants to grab the property by taking advantage of mention of his name in transfer documents. In parawise reply corresponding para (2
5), defendant repeated that name of plaintiff was mentioned due to love and affection. At page 14, it is stated that after passing of four years, plaintiff has become dishonest and is trying to take advantage of mention of his name in transfer documents. In the W.S. Of the present case defendant has taken a somersault and come with a plea that he is sole owner and title documents of plaintiff are Indrasan vs. Inderjeet Page : 35 of 45 CS No. 58203/16 forged.
56. Another contradiction which is irreconcilable is that in the previous written statement, the amount of loan having been taken by the plaintiff was Rs. 3.20 lacs whereas in the present written statement, the amount has been increased to Rs. 4.60 lacs. The date of the written statement of that suit is 07.07.2008 and debts were claimed to that of Omi, Raju S/o Sh. Ganga Ram, Hasanand, Pushpa Yadav and Lal Bahadur Yadav, whereas in the present written statement, names of the lenders have been given as KTC Khurana and Trading Company; Ganda Ram and Company, Balaji Food Company, SDC Sevan Dass and Service and other traders.
57. The panchayati faisla (Ex.DW1/4) is claimed to be dated 05.02.2005. The contents of panchayati faisla and contents of previous written statement regarding loan amount and lenders are at complete variance. Had Ex.DW1/4 been true, then the names of the lenders i.e. KTC Khurana and Trading Company; Ganda Ram and Company, Balaji Food Company, SDC Sevan Dass and Service and amount of Rs. 4.60 lacs would have found mention in the previous Indrasan vs. Inderjeet Page : 36 of 45 CS No. 58203/16 written statement which was fixed on 07.07.08.
58. Another fact which has inclined this court to observe against the defendant regarding the documents having been manipulated by him and not by plaintiff is that reverse of Ex.DW1/4 goes to show that stamp paper was purchased from Mr. Vinod Wadhwa, stamp vendor. It is surprising to note that the documents which were executed by Mr. Rohtash in 1990 were also purchased from the same stamp vendor. The reverse of Ex.DW1/3D also shows that this stamp paper has also been purchased from the same stamp vendor Mr. Vinod Wadhwa. The coincidence of purchase of stamp papers from the same stamp vendor of all the chain documents raises a serious doubt about the authenticity of the documents of defendant.
59.If the dates are kept in mind then also the case of defendant looses its sheen. Previous written statement was filed on 17.07.2008. On 12.02.2008, statement was given by defendant regarding non selling etc., suit was filed on 2007. Receipts of Balaji Trading Co., Khurana Trading Company, Sevan Dass & Company and Ganda Ram & Company are dated 15.02.05, 07.02.05, 14.02.05 and 11.02.05 for a Indrasan vs. Inderjeet Page : 37 of 45 CS No. 58203/16 sum of Rs.67,000/, Rs.60,000/, Rs.70,000/ and Rs.65,000/, respectively. At the cost of repetition, it is stated that defendant has failed to explain as to why receipts were not shown in the previous written statement dated 07.07.08. A receipt issued to Khurana Trading Company is not in consonance with the documents relied upon by the defendant as in the Panchayati Faisla (Ex.DW1/4) amount is Rs.58,000/ whereas in the receipt Ex.DW1/5C it has been shown as Rs.60,000/. This fact gives the strength to the veracity of the version of the plaintiff who has taken the stand in para 4 of replication that these documents were not there at the time of filing of written statement in Civil Suit No. 707/07 and were later on manipulated.
60. Stand of the respondent in the previous written statement versus present written statement is at variance. In the previous written statement, stand was to the effect that name of the plaintiff was there in the documents without consideration whereas in the present written statement in preliminary objection no. 2 defendant has asserted that plaintiff got prepared forged and fabricated registered General Power of Attorney and registered Will by changing father's name and by fraudulently taking the signatures of the seller Indrasan vs. Inderjeet Page : 38 of 45 CS No. 58203/16 on the registered General Power of Attorney and registered Will dated 09.07.97. In preliminary objection no. 4 stand of the defendant is that plaintiff forged the registered Will and registered Power of Attorney to commit fraud and forgery upon money lender. In preliminary objection no. 6, defendant came with the plea that he is the absolute and sole owner. In preliminary objection no. 9, he came with the plea that he is the owner and is in actual lawful physical possession. In parawise reply on merits, in para 2 to 7 he took the stand in the last that at the time of purchasing of suit property, plaintiff had a right and share in suit property as a family member and plaintiff being a clever person got prepared forged and fabricated registered Will and General Power of Attorney.
61. Defendant has placed much reliance on the name Chattar Singh being there instead of Ram Aadhar Yadav in the registered documents of plaintiff. As far as name of Chattar Singh being there instead of Ram Aadhar Yadav, plaintiff has explained properly that it was the defendant who had got the ration card of his father prepared (in para 2 of the replication) through one Mr. Vinod Nagar, cousin of Sh. Nathu Ram Nagar and it was cousin Mr. Vinod Nagar who gave name of his father as Chattar Singh instead of Ram Aadhar Yadav. Plaintiff Indrasan vs. Inderjeet Page : 39 of 45 CS No. 58203/16 has proved this fact by placing on record electoral roll Ex.DW1/P2. In this electoral roll at serial no. 5 which is of year 1998 of Assembly Constituency, Part062, Model Town Part 094, name of father of Inderjeet (defendant) has been given as Chattar Singh and not Ram Aadhar Yadav. So defendant on this ground is not entitled to get anything. The aforegoing discussion leads to the conclusion that there is truth in the plea of the plaintiff that filing of written statement in his previous suit was delayed intentionally in order to manipulate documents.
62. Another glaring defect in the case of the defendant is that in both the written statements which are dated 16.07.12 and 17.07.08 in preliminary objection no. 7, it is asserted that plaintiff had become dishonest after passing of about four years. Defendant has failed to explain as to from which date, this four years started. This also shows the falsity of the case of the defendant.
63. It may also be mentioned at this juncture as it was left to be mentioned earlier that version of PW2 in his crossexamination also fortifies the case of plaintiff who has answered to a question of the plaintiff regarding knowledge of the witness about income, assets, Indrasan vs. Inderjeet Page : 40 of 45 CS No. 58203/16 debts and land of plaintiff and defendant. The answer is reproduced as follows : "I have come to the court for disclosing the facts that the suit property had been purchased jointly since work and business of the plaintiff and defendant were together." No suggestion to the contrary was given to this witness and this fact also vouches about the veracity of the case of the plaintiff. Version of plaintiff regarding he resided together is supported by the documents relied upon by the defendant.
64. If the aforesaid contradictions are considered, then this court has no hitch to observe that case of plaintiff is having more weight than that of plaintiff when tested on the touchstone of preponderance of probabilities.
65. In civil cases it is settled principle of law that the matter has to be decided on the basis of preponderance of probabilities unlike criminal cases which are to be decided on the doctrine of proof beyond reasonable doubt. This doctrine of preponderance of probabilities applies more in determining truthfulness of witnesses where corroboration is not easily available. Presumption as Indrasan vs. Inderjeet Page : 41 of 45 CS No. 58203/16 contemplated under section 114 and section 80 of the Indian Evidence Act have also to be taken aid of. Reliance is placed on Vishnu Dutt Sharma vs. Daya Sapra - 2009 (3) RCR (Civil) 483 and Municipal Corporation Hyderabad vs Sunder Singh - AIR 2008 SC 2579.
66. The result of the discussion hereinabove comes that the defendant is not the sole owner of the suit property. The plaintiff owns the suit property jointly with the defendant. The issue is accordingly decided in favour of the plaintiff and against the defendant. Issue No.2: Whether the plaintiff is entitled to a decree of possession of the suit property as prayed in the para (1) of prayer clause of the plaint? OPP
67. In view of my findings on the issue no. 1 that the defendant is not the sole owner of the suit property but is a joint owner with the plaintiff, it is evident that he is entitled to possession of undivided share in the suit property. Since the parties have not led any evidence regarding their share in the suit property based on any understanding or agreement or based on the consideration, it is presumed that both are entitled to 50% share each in the suit property. The issue is accordingly decided in favour of the plaintiff and against the Indrasan vs. Inderjeet Page : 42 of 45 CS No. 58203/16 defendant.
Issue No.3: Whether the plaintiff is entitled to damages and occupation charges? If so, then at what rate and and for what amount? OPP
68. The plaintiff has established on record that he left the suit property at the request of his brother/defendant only. He has explained that relations of his wife were not good with wife of defendant (his Bhabhi) and to have peace in the family, he acceded to the request of the defendant and shifted to another house. It is, thus, evident that the plaintiff left the defendant to stay in the entire property. No date of vacation has been given by the plaintiff in his pleadings as well as evidence lead. In view of the failure of the plaintiff of giving the date of vacation and proving the same, version of the defendant regarding vacation by the plaintiff is to be believed. As per defendant, plaintiff vacated on 08.02.05. The defendant, admittedly, sold 50 sq. yards of the plot without the information or consent of the plaintiff who, therefore, would be entitled to 50% of the amount of consideration received by the defendant. Plaintiff in his replication at para no. 6 has admitted about sale of plot of 50 sq. yds. Version in para no. 7 of the replication is also supported by the defendant. Since the defendant has been enjoying the suit property Indrasan vs. Inderjeet Page : 43 of 45 CS No. 58203/16 entirely, the plaintiff would be entitled to damages/mesne profit at the market rate. The parties have not led any evidence regarding the market rate at which rent would have accrued to the parties during the material period. However, since the issue has to be disposed of and as the defendant has simply denied and has not controverted the version of the plaintiff in his pleadings regarding the mesne profit @ Rs. 150/ per day for his portion of 75 sq. yards, this court shall have to decide this issue. As per panchayati faisla and the admitted version of defendant, the plot of 50 sq. yards has been sold by the defendant. Value of 50 sq. yards has been shown in the panchayati faisla as Rs. 1.50 lacs. The plaintiff being joint owner of undivided portion of 150 sq. yards is entitled to half of the sale proceeds of Rs. 1.50 lacs. With respect to mesne profit occupation charges/damages, the stand of the plaintiff in the prayer clause @ Rs.4500/ per month seems to be on higher side. In the absence of any evidence having been led by the plaintiff, this court has to decide by taking judicial notice. Judicial notice can be taken of the fact that Mukundpur falls in rural area and is an unauthorised colony and entire property would have fetched a rent of Rs. 5000/ per month at the maximum. The plaintiff would be entitled to 50% of the said amount i.e. 2500/ per month.
Indrasan vs. Inderjeet Page : 44 of 45 CS No. 58203/16
69. In view of the findings, there is no need to dispose of the application dated 20.02.17 moved by the plaintiff. RELIEF:
70. In view of my findings on the issues no.1, 2 and 3 above, the suit of the plaintiff succeeds and suit is decreed. The plaintiff is entitled to half undivided share of the suit property. He will be entitled to mesne profit @ Rs.2500/ per month from the date he left the suit property which is held as 08.02.05 in issue no. 3 till realisation. Defendant is directed to pay half of the consideration amount received by him from the sale of 50 sq. yards of the plot from the suit property i.e. Rs.75,000/. In case payment will not be made within six months, then plaintiff will get interest @ 12% w.e.f. 01.03.18. Plaintiff will also be entitled to costs of the suit. Decree sheet be drawn accordingly.
71. File be consigned to record room.
Announced in the open court (DILBAG SINGH PUNIA)
today i.e. 26.08.2017 District & Sessions Judge (North)
Rohini Courts, Delhi
Indrasan vs. Inderjeet Page : 45 of 45
CS No. 58203/16