Delhi District Court
3 vs Late Ram Kaur W/O Late Sh. Nathu Singh ... on 30 January, 2020
IN THE COURT OF SH. M. P. SINGH, ADDITIONAL DISTRICT JUDGE
03, EAST DISTRICT, KARKARDOOMA COURTS: DELHI
CS No. 90/16
Smt. Subhadra @ Savitri
W/o Sh. Ram Singh
D/o Late Nathu Singh Bodh
R/o A179, Harijan Basti,
Kondli, Delhi ................ Plaintiff
Versus
1. Late Ram Kaur w/o Late Sh. Nathu Singh Bodh
(Since deceased; Order dt. 27.04.2019 reflects that defendant no.1 late Ram
Kaur left behind only one legal heir, namely, defendant no.2 Satyaprakashi)
R/o A179, Harijan Basti,
Kondli, Delhi
2. Smt. Satyaprakashi w/o Bhanu Pratap
R/o A122, Harijan Basti,
Kondli, Delhi ............Defendants
Suit filed on - 13.04.2015
Arguments heard on - 24.01.2020
Judgment pronounced on - 30.01.2020
JUDGMENT
1. Plaintiff's case is as follows: I) Late Nathu Singh Bodh (for short 'NSB') had married twice. Plaintiff is late NSB's daughter from his first marriage with late Ms. Shyama. Defendant no.1 Ms. Ram Kaur is the second wife of late NSB. Defendant no.2 is late NSB's daughter from his second wife Ms. Ram Kaur (defendant no.1). Late NSB passed away on 02.08.1997.
II) There is a property bearing no. A179, village Harijan Basti, Kondli, CS No. 90/16 Subhadra @ Savitri Vs. Ram Kaur & Anr. Page 1 of 9 Illaqa Shahdara, Delhi measuring 100 sq. yards. Late NSB purchased it on 07.08.1987. 50 sq. yards portion of this property stood in the name of late NSB. The remaining 50 sq. yards portion of this property, which had been actually purchased by late NSB, came to be shown on the papers in the name of defendant no.1 (Ram Kaur). It is this 50 sq. yards portion, in the name of defendant no.1 (Ram Kaur), for which the plaintiff instituted the instant lis. Plaintiff avers that defendant no. 1 was a housewife and she was not working anywhere and the 50 sq. yards portion is not a self acquired property and that both the defendants are residing therein as cosharers. Plaintiff asserts that late NSB had purchased the aforesaid property after selling out a property bearing no. A71, Kundan Nagar, Delhi and as such she (plaintiff) has a share therein. The original documents of the property are stated to be in possession of defendant no.1.
III) Plaintiff's claim is that vide a Family Will dt. 29.05.1997 late NSB bequeathed the suit property to her. As per the plaintiff, during his lifetime, late NSB had adopted plaintiff's biological son namely Devender Kumar and defendant no.1 never raised any objection to it.
IV) Plaintiff states that Devender Kumar did not disclose to her the previous litigations filed by defendant no.1 against him for the reason that he (Devender Kumar), who had bad intentions, wanted to grab the suit property. It is only in February 2015 on receiving Court summons in a civil suit filed by defendant no.1 against him that he disclosed to her all the facts about the previous litigations. Devender Kumar told her CS No. 90/16 Subhadra @ Savitri Vs. Ram Kaur & Anr. Page 2 of 9 that defendant no.1 had portrayed him as a tenant and filed a suit for possession against him qua a room on the ground floor. She further avers that Devender Kumar told her that he suffered a decree for possession in the said civil suit for possession filed by defendant no.1 and that she (defendant no.1) took possession of the room on the ground floor pursuant to decree against him (Devender Kumar). Plaintiff asserts that defendant no.1 filed such a suit against Devender Kumar despite the fact that she (plaintiff) is the owner of the suit property and that Devender Kumar is actually not the tenant and he is in fact residing with her (plaintiff's) permission.
V) Plaintiff alleges that defendants no.1 and 2 have got prepared some forged and fabricated documents. Plaintiff further avers that she did not disclose to Devender Kumar about the aforesaid family Will for the reason that the latter was having bad intentions and that he may have pressurised her to transfer the suit property in his name. It was only on 15.02.2015 that the plaintiff disclosed about the aforesaid Will to Devender Kumar.
VI) On 19.03.2015, the defendants approached property dealers to sell out the suit property. On these averments, plaintiff seeks the following reliefs: a. To pass a decree of separate possession and partition in favour of plaintiff and against the defendants regarding the suit property in question of ½ share of the suit property vide property bearing No. A179, out of 50 sq. yards vide Khasra No. 238, situated in the area of village Kondli, Illaqa Shahdara, New Delhi State, Delhi in favour of plaintiff, her agents, associates, family members, representatives etc., as the plaintiff is the CS No. 90/16 Subhadra @ Savitri Vs. Ram Kaur & Anr. Page 3 of 9 absolute, exclusive and bonafide owner of the suit property, which is shown in red colour in the site plan.
b. Pass a decree of declaration in favour of the plaintiff and against the defendants and their associates vide declaring the false, fake and frivolous forged documents prepared and executed by the defendants and their associates in respect of the suit property in question in favour of any third person and same be declared null and void if any document was executed by the defendants in favour of any third person during the pendency of the suit in respect of the suit property in question vide property bearing No. A179, admeasuring 50 sq. yards vide Khasra No. 238, situated in the area of village Kondli, Illaqa Shahdara, New Delhi State, Delhi. The suit property as specifically shown in red colour in the site plan.
c. To pass a decree of permanent injunction thereby restraining the defendants and their associates, agents, family members from selling, transferring, alienating or creating any third party interest, restraining the defendants to enter in the entire suit property in question vide property bearing No. A179, admeasuring 50 sq. yards vide Khasra No. 238, situated in the area of village Kondli, Illaqa Shahdara, New Delhi State, Delhi and further issuing the directions not to dispose of the entire suit property in question. The suit property as specifically shown in red colour in the site plan.
2. Defendants filed their written statement on 14.07.2015. They state that late NSB had sold portion measuring 50 sq. yards standing in his own name to defendant no.2 vide GPA (Ex. DW1/1), Agreement to Sell (Ex. DW1/2), Affidavit (Ex. DW1/3), Receipt (Ex. DW1/4) and Will (Ex. DW1/5), all date 13.09.1995. They further state that the other 50 sq. yards portion belongs exclusively to defendant no. 1 as she had purchased the same from her own funds and raised construction thereon out of her own money. Defendants state that there is a long history of litigations between them, the plaintiff and Devender Kumar. They state that they got possession of one room from CS No. 90/16 Subhadra @ Savitri Vs. Ram Kaur & Anr. Page 4 of 9 plaintiff's son after 17 years of litigation which had gone right up till the High Court; that plaintiff's son Devender Kumar had tried to delay the proceedings in the suit for possession; that after getting possession of the room pursuant to the decree, plaintiff's son with the help of the plaintiff and muscle man forcibly took possession of a shop on the ground floor. They state that during the course of previous litigations, in some of which the plaintiff was also a party, she never disclosed about the previous Will of late NSB and it thus clear that the said Will is false and fabricated. They state that the plaintiff is in fact a resident of Mathura, UP. They state that the plea of adoption has already been disbelieved in the previous litigations by various Courts. Denying other averments, defendants seek dismissal of the suit.
3. Plaintiff in her replication reiterated her averments as set out in the plaint and refuted those of the defendants as averred in their written statement.
4. Issues, framed on 14.12.2015, are as under:
1. Whether the plaintiff is entitled for the relief of possession as prayed for? OPP
2. Whether the plaintiff is entitled for the decree of partition as prayed for? OPP
3. Whether the plaintiff is entitled for decree of declaration, as prayed for? OPP
4. Whether the plaintiff is entitled for decree of injunction as prayed for? OPP
5. Whether the WILL of late Shri Nathu Singh Bodh is forged and fabricated? OPD
6. Whether the suit has been filed by the plaintiff without any cause of action? OPD
7. Whether the suit of the plaintiff is barred by limitation? OPD CS No. 90/16 Subhadra @ Savitri Vs. Ram Kaur & Anr. Page 5 of 9
8. Whether the suit of the plaintiff is bad for misjoinder and non joinder of necessary partied? OPD
9. Relief.
5. In plaintiff's evidence no witness was examined. The plaintiff was given several opportunities to lead her evidence. Despite the same, she led no evidence. On 23.08.2016 the plaintiff (PW1) entered the witness box only for her partial examinationinchief. She did not again enter the witness box. Consequently, plaintiff's evidence was ordered to be closed vide order dt. 02.11.2016.
6. In defendants' only one witness namely DW1 Ram Kaur was examined. It is pertinent to mention here that she was examinedinchief on 10.08.2017 and partly crossexamined on 26.03.2018. Ld. Counsel for the plaintiff despite repeated opportunities did not crossexamine her again. Consequently, vide order dt. 11.04.2018 plaintiff's opportunity to crossexamine her (DW1) stood closed.
7. Arguments heard. Record perused.
8. Issuewise findings are as follows:
9. Issues no. 1, 2, 3 and 4 - Onus to prove all these four issues was on the plaintiff. For the following reasons, these issues are decided against the plaintiff: (a) There is no evidence whatsoever of the plaintiff on record in support of her pleas, (b) The plaintiff bases her case on a Family Will dt. 29.05.1997 of late NSB. Her claim is that vide this Will late NSB had bequeathed the suit property to her. This Will never saw the light of the day. This Will was not furnished on record. Record shows that with regard to this CS No. 90/16 Subhadra @ Savitri Vs. Ram Kaur & Anr. Page 6 of 9 Will an FIR no. 455/16 PS Gazipur under sections 420/468/471/120B, IPC stands registered on the complaint of defendant no. 2 Ms. Satyaprakashi. It is pertinent to mention here that the Investigating Officer (IO) moved an application on 28.01.2017 before this Court to obtain the original Will so that its genuineness could be verified from Forensic Science Laboratory (FSL). However, since the Will was not there on record, Ld. Predecessor of this Court on 02.02.2017 directed that the IO is at liberty to contact the plaintiff to obtain the Will. Thus the very basis of plaintiff's case i.e. Family Will dt. 29.05.1997 not having seen the light of the day, she cannot be granted any of the reliefs claimed by her. (c) Even the photocopy of this Family Will is not there on record. (d) The witnesses of this Family Will did not step into the witness box. (e) Plaintiff claims that late NSB had purchased the suit property after selling out a property bearing no. A71, Kundan Nagar, Delhi. However, it is pertinent to mention here that this aspect already stands decided in the case of Devender Kumar Vs. Ram Kaur & Ors., CS no. 304/2008 wherein Ms. Subhadra was defendant no. 4. The judgment of CS no. 204/2008 shows that a specific issue (issue no. 6) was framed in this regard and a finding was returned by the Court that there is no proof to show that late NSB had purchased the suit property after selling out property bearing no. A71, Kundan Nagar, Delhi. The judgment reflects that all the three persons who are parties to the present suit were also parties in the suit no. 304/2008. The record further reflects that an appeal had been unsuccessfully preferred against the decree of dismissal of CS no. 304/2008. This plea being raised by the plaintiff is barred by the principle of res judicata under section 11, CPC. (f) It is highly suspicious as to why in the course of previous litigations, the CS No. 90/16 Subhadra @ Savitri Vs. Ram Kaur & Anr. Page 7 of 9 plaintiff never ever came up with the aforesaid Will. (g) Lastly, the aspect whether Devender Kumar is the adopted son of late NSB has already been decided in the negative in the previous civil suit. Given this, there arises no occasion for this issue to be agitated again and again. For these reasons, all these issues are decided against the plaintiff.
10. Issue no. 5 - The Will never saw the light of the day. It was never furnished on record. Even its photocopy was not placed on record. Thus the defendants could not have possibly proved forgery/fabrication, if any, in the said Will. Given this, there can be finding about forgery or fabrication of the Will. This issue accordingly stands decided.
11. Issue no. 7 - The suit property stood in the name of defendant no. 1 in terms of documents dt. 07.08.1987. Late NSB passed away on 02.08.1997. The alleged Family Will is dt. 29.05.1997. The record reflects that CS no. 304/2008, wherein Ms. Subhadra was also a party as defendant no. 4, came to be instituted on 16.12.2002. The present suit being filed on 13.04.2015 i.e. after more than 12 years, is hopelessly barred by time. This issue is answered against the plaintiff and in favour of the defendants.
12. Issue no. 6 - There is no evidence whatsoever led by the plaintiff. Given this, it goes without saying that the suit is proved to have been filed without any cause of action. This issue is answered against the plaintiff and in favour of the defendants.
13. Issue no. 8 - This Court is of the view that from the point of view of plaintiff's averments in the plaint, the present suit was bad for nonjoinder of necessary party. It was averred in the plaint that Devender Kumar was an CS No. 90/16 Subhadra @ Savitri Vs. Ram Kaur & Anr. Page 8 of 9 adopted son of late NSB. If this be so, then Devender Kumar too must be a legal heir of late NSB, in plaintiff's scheme of things, and thus he too must have been joined in the present suit claiming partition and possession of suit property purportedly on the claim that it belonged to late NSB. This suit as framed was thus hit by proviso to Order I Rule 9, CPC. This issue is answered against the plaintiff and in favour of the defendants.
14. Relief: The suit stands dismissed. This suit is a frivolous one intended merely to harass the defendants and to waste the time, energy and resources of the Court. In terms of the decision in Ramrameshwari Devi & Ors. vs. Nirmala Devi & Ors., (2011)8 SCC 249 it is fit and apposite that plaintiff be burdened with actual costs for initiating the present frivolous litigation which smacks of brazen dishonesty and was a wastage of precious time, energy and resources. Plaintiff's attitude cannot be appreciated. Plaintiff shall bear a cost of Rs. 50,000/ (Fifty Thousand Rupees only) to be paid to defendant no.2 Ms. Satyaprakashi. Decree sheet be drawn up. File be consigned to record room.
Digitally signed by MURARI PRASADMURARI SINGH Location: Court PRASAD No.7, Announced in the open Court Karkardooma SINGH Courts, Delhi Date: 2020.01.30 on 30th January, 2020 16:52:05 +0530 (M. P. Singh) Addl. District Judge03, East, Delhi 30.01.2020 CS No. 90/16 Subhadra @ Savitri Vs. Ram Kaur & Anr. Page 9 of 9