Delhi District Court
Raj Kumar vs Sh. Ramesh Kumar on 22 September, 2022
IN THE COURT OF SH. KARTIK TAPARIA : CIVIL JUDGE 02
(CENTRAL), TIS HAZARI COURTS, DELHI.
Suit No. 99897/16
In the matter of :
Raj Kumar
S/o Late Sh. Nanwa Ram,
R/o H.No. 5041, 4th Floor,
Prakash Chambers,
Netaji Subhash Marg,
Daryaganj, Delhi. .... Plaintiff
VERSUS
1. Sh. Ramesh Kumar
S/o Late Sh. Nanwa Ram
2. Sh. Ashutosh
S/o Sh. Ramesh Kumar
Both Residents of :
Hanuman Mandir, Dhar Trust,
Adarsh Kusti Kendra,
Near Mahavir Vatika,
Daryaganj, New Delhi110002. ....Defendant
Date of Institution: 03.07.2015
Date of reserving the judgment: 27.08.2022
Date of Judgment: 22.09.2022
Final Judgment : Suit Dismissed.
JUDGMENT
(Suit for Declaration, Permanent and Mandatory Injunction) Page 1 of 22
1. The brief facts of the present suit are that the plaintiff is the real younger son of late Sh. Nanwa Ram and is residing at the aforesaid address along with his other family members and is a law abiding citizen and has good reputation in the society.
1.1 It is further submitted that Sh. Nanwa Ram (since deceased) was the Khalifa of Akhara known as "Adarsh Vyayamshala" near Mahavir Vatika, Daryaganj, New Delhi. One small Hanuman Temple is also situated in the said Akhara.
1.2 It is further submitted that the said Khalifa Sh. Nanwa Ram (since deceased) was duly authorized to nominate a person to succeed him to observe the tradition of Akhara and that tradition was to be fulfilled by Nomination of any person that can be disciple or not. According to the rules of the Akhara, the power of Nomination was totally vested in the Khalifa and he was fully authorized to nominate his successor and the authority to nominate Khalifa cannot be challenged 1.3 It is further submitted that according to the rules and regulation and traditions of the Akhara the said Sh. Nanwa Ram (since Page 2 of 22 deceased) had nominated the plaintiff, being his younger son as the next Khalifa of the abovesaid Adarsh Vyaymshala, Mahavir Vatika, Daryaganj, Delhi. The said Sh. Nanwa Ram (since deceased) had executed a Will dated 17.07.1995 to that effect in the presence of the witnesses. 1.4 It is further submitted that by virtue of the said Will, it was specifically mentioned therein that the Khalifa is bound to observe some specific rules of the wrestling tradition that the person who is being declared as next Khalifa should belong to the same 'Dal' to which the all previous Khalifa belongs. The plaintiff was belonging to the same 'Dal' i.e 'Ram Dal', hence, he was declared the next Khalifa to look after the affairs of the said 'Adarsh Vyayamshala'.
1.5 It is further submitted that by virtue of the said Will it has been specifically mentioned that why the defendant No. 1 Sh. Ramesh Kumar was not declared the Khalifa of the said Akhara because of the reason that he does not belong to Ram Dal and was belonging to 'Gondi Shah Dal' and hence, he could not be nominated as Khalifa of the Akhara. 1.6 It is further submitted that since then the plaintiff is looking Page 3 of 22 after the affairs of the said Akhara for its maintenance, uplifting, upgradation and to make arrangements of functions etc. andused to keep watch on each and every activityof the Akhara by virtue of powers given to him by his father.
1.7 It is further submitted that the plaintiff has come to know from some reliable sources that the defendants on the basis of some forged and fabricated documents are claiming themselves to be the Khalifa of the said Akhara and used to interfere forcibly in the peaceful enjoyment of the Akhara and the said Hanuman Temple.
1.8 It is further submitted that the plaintiff has come to know that some unknown and unscrupulous persons have encroached upon the portion of the land of the abovesaid Akhara with the collusion and connivance of the defendants who have no right, title or authority to interfere in the said Akhara in any manner whatsoever. Those persons are creating hindrance in the peaceful enjoyment of the Akhara by encroaching a portion therein. The plaintiff has made a complaint to that effect to the SHO P.S. Darya Ganj and to the Commissioner of MCD Delhi Page 4 of 22 vide complaint dated 14.03.2015, but no action has been taken by the above said authorities so far.
1.9 It is further submitted that not only this, the plaintiff has made another complaint vide complaint dated 30.04.205, which was received on 21.05.2015 vide DD No. 74B by the police of P.S. Daryaganj, but no action has been taken by the police on the said complaint. 1.10 It is further submitted that the defendants have no right, title or authority to interfere in the peaceful possession of the plaintiff and other devotees of Hanuman Temple and the Akhara in any manner whatsoever, but they are adamant to take the law into their own hands and can go to any extent to occupy the said Akhara forcibly on the basis of alleged forged and fabricated documents.
1.11 It is further submitted that not only this, as and when the plaintiff asked the defendants as to why they are interfering in the peaceful enjoyment of the Akhara and Hanuman Mandir by the plaintiff and other devotees, the plaintiff was threatened by the defendants with dire consequences and has also threatened to forcibly occupy the said Page 5 of 22 Akhara either by hook or crook as they have approachd with the higher officials and politicians of the area.
1.12 It is further submitted that on 27.06.2015, the defendant along with his goons came to the suit property and started throwing the articles on road and created a scene, but with the intervention of the neighbours and other respectable persons, they could not succeed in their illmotive and left the suit property with the threat to come again with more manpower and to occupy the suit property. The plaintiff immediately approached the local police station to lodge a complaint against the defendant and his associates, but the police officials refused to take any action and further advised the plaintiff that it is a civil matter and it is better to approach the courts.
1.13 Hence, the present suit with the following prayers :
a) Pass a decree of Declaration, thereby declaring the alleged documents of the defendants on the basis of which they are claiming themselves to be the Khalifa/ owner of the Akhara, as null and void and of no legal consequence;
b) Pass a decree of Permanent Injunction in favour of the Page 6 of 22 plaintiff and against the defendants, their associates, assignees, representatives, heirs, goons etc. not to interfere in the peaceful possession and enjoyment of the suit property by the plaintiff and the other devotees;
c) Grant cost of the suit in favour of the plaintiff and against the defendants.
2. Summons of the present suit were issued and served upon both the defendants, in pursuance of which the defendants filed their written statement.
3. In their written statement, defendants have taken the preliminary objections that suit of the plaintiff is without any cause of action and the suit is not maintainable. It is further averred that present suit is gross misuse and abuse of the process of law, hence, the present suit of the plaintiff is not maintainable. It is further averred that plaintiff has not approached the Hon'ble Court with clean hands and has suppressed true and material facts. It is further averred that present suit for permanent and mandatory injunction in the present form is not maintainable as the plaintiff is not the owner and in possession of the suit property.
Page 7 of 22 3.1 On merits, it is averred that Late Sh. Nanwa Ram S/o Sh. Bajju was the occupier of the suit property who gifted the suit property in favour of the defendant no. 1 vide gift deed dated 05.06.1998 and thereafter the defendant no. 1 got the said Akhara registered vide Trust Deed Registration No. 7577 in book no. 1, Vol No. 776 on page no. 16 to 22 dated 17.05.2022 and thereafter supplementary Trust Deed was also registered with the SubRegistrarIII, New Delhi vide registration no. 940 in Book No. 4, Vol No. 4273 on page 99 to 103 dated 13.09.2012. 3.2 It is further averred that defendant no. 1 got mutated the property in his name in the house tax records and paid house tax and also got water connection in his name. It is further averred that Delhi Wrestling Association (Regd.) at Shiv Hanuman Mandir, 2086, Yamuna Bazar, Delhi110006 issued "Pagree Rasm Certificate" dated 13.03.2002 in favour of the defendant no. 1 and duly conferred him with the title of 'Guru" of "Adarsh Kusthi Kendra" in Ramdal.
3.3 It is further averred that defendant no. 2 has been nominated as Sanchalak of Adarsh Kushti Kendra Vyayam Shala, Ramdal by Delhi Wrestling Association registered vide certificate dated 01.03.2015. It is Page 8 of 22 further averred that defendant no. 1 got published a public notice in Newspaper Jansatta dated 27.04.2017 through his Advocate and the defendant received general body meeting notice dated 20.07.2015 issued by Delhi Wrestling Association to attend the meeting of 26.07.2015 at Delhi Wrestling Association (Regd.) at Shiv Hanuman Mandir, 2086, Yamuna Bazar, Delhi110006. It is lastly averred that Sh Nanwa Ram did not execute any will during his lifetime and the will dated 17.07.1995 filed by the plaintiff is false, forged and fabricated document. Rest of the contentions made in the plaint are denied in the written statement.
4. In the replication, the plaintiff denied the averments made in the written statement and reiterated those made in the plaint.
5. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 24.08.2017 and an additional issue was framed on 27.08.2022 :
1. Whether the plaintiff is entitled to the decree of declaration thereby declaring the alleged documents null and void as prayed for in prayer Clause (a) of the plaint? OPP. Page 9 of 22
2. Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for in prayer Clause (b) of the plaint? OPP.
3. Whether the documents i.e Gift Deed dated 05.06.1998 and other documents filed by the defendants are forged and fabricated? OPP
4. Whether the present suit is barred by limitation ? OPD
5. Relief.
6. In support of his case, the plaintiff examined himself as PW1 by tendering his evidence by way of affidavit Ex.PW1/A. He relied upon the following documents :
1. Ex. PW1/1 is the site plan of the suit property.
2. Ex. PW1/2 is the copy of Will dated 17.07.1995 (OSR).
3. Mark A is the copy of complaint dated 14.03.2015 made to SHO PS Darya Ganj and Commissioner of MCD, Town Hall, New Delhi.
4. Mark B is the copy of the complaint dated 30.04.2015 made to SHO PS Darya Ganj, Delhi.
5. Mark C is the copy of the newspaper dated 06.05.2015 cutting showing in the photographs of the plaintiff alongwith the wrestler Satpal and Councilor Ms. Simmi Jain.
6. Mark D is the copy of the newspaper dated 22.04.2015 cutting showing in the photographs of the plaintiff alongwith Page 10 of 22 the wrestler Satpal and Councilor Ms. Simmi Jain.
7. PW1 was crossexamined at length by Ld. Counsel for the defendant.
Thereafter, PE was closed by the court vide order dated 28.11.2019. The application filed by the plaintiff for reopening the PE was dismissed vide order dated 05.02.2020. Another application U/o 18 Rule 17 r/w Section 151 CPC on behalf of plaintiff for reopening PE was again dismissed with cost of Rs.5000/ vide order dated 27.08.2022.
8. On the other hand, the defendant examined himself as DW1 by tendering his evidence by way of affidavit Ex.DW1/A. He relied upon the following documents :
1. Ex.DW1/1 is the copy of Gift Deed dated 05.06.1998 (OSR).
2. Ex.DW1/2 is the copy of the Trust Deed dated 17.05.2002 (OSR).
3. Ex.DW1/3 is the copy of the supplementary Trust Deed dated 03.09.2012 (OSR).
4. Ex.DW1/4 is the copy of the mutation dated 27.04.2004 (OSR).
5. Ex. DW1/5 is the copy of the notice dated 14.09.2015 issued Page 11 of 22 by the South DMC (OSR).
6. Ex. DW1/6 is the copy of the House Tax Receipt dated 22.08.2012(OSR).
7. Ex. DW1/7 is the copy of the Pagri Rashm Certificate dated 13.03.2002 (OSR).
8. Ex. DW1/8 is the copy of the Sanchalak Certificate dated 13.03.2013 (OSR).
9. Ex. DW1/9 is the copy of the Khalifa Certificate dated 01.03.2015 (OSR).
10. Ex. DW1/10 is the copy of the cutting of the Newspaper 'Jansatta' dated 27.04.2013 (OSR).
11. Ex.PW1/11 (Colly.) are the copies of the complaints dated 10.03.2005, 11.03.2006, 09.03.2007, 11.03.2008, 10.03.2014, 27.02.2015 and 11.03.2015 made to SHO P.S. Darya Ganj, Delhi.
12. Mark 'A' is the copy of the property tax receipt dated 04.07.2013.
13. Mark 'B' is the copy of the water bill.
14. Mark 'C' is the copy of the Water Bill payment receipt.
15. Mark 'D' is the copy of the notice of General Meeting dated 20.07.2015.
DW1 was crossexamined at length by Ld. Counsel for the plaintiff.
Page 12 of 22
9. Thereafter, DW1 closed defence evidence vide order dated 04.07.2022, and matter was fixed for final arguments.
10. I have heard the arguments advanced by Ld. Counsel for the parties and carefully perused the record. My issuewise findings are as under : Issue No. 1 Whether the plaintiff is entitled to the decree of declaration thereby declaring the alleged documents null and void as prayed for in prayer Clause (a) of the plaint? OPP. and Issue No.3 Whether the documents i.e Gift Deed dated 05.06.1998 and other documents filed by the defendants are forged and fabricated? OPP
11. Issue nos. 1 and Issue no. 3 shall be dealt with together, being inextricably bound.
The burden of proving these issues was on the plaintiff. The Page 13 of 22 plaintiff has not mentioned in the plaint as to what are these documents prepared by the defendants that he wishes to be declared as null and void. In the cause of action paragraph of the plaint, there is no mention of the said documents. The said gift deed dated 05.06.1998, trust deed dated 17.05.2002 as well as supplementary trust deed dated 03.09.2012 are mentioned for the first time in the written statement. In the replication, the gift deed and the other documents have been assailed stating that the same are forged and fabricated, as Sh. Nanwa Ram was not of sound mind at the relevant time, and couldn't have executed such documents. In the replication, the plaintiff has not averred that he was not in the knowledge of the said documents or the exact description of the documents, and the documents are denied generally. Further, if it is assumed that the plaintiff came to know about the specifics of the impugned documents only after the filing of the written statement, then he should have amended the plaint, thereby specifying the particulars of his claim. The same was not done by the plaintiff. Accordingly, as per the plaint and the documents filed by the plaintiff, it can not be determined as to what documents the plaintiff wishes to be declared as null and void. Page 14 of 22
12. Order 7 Rule 7 of CPC provides that the plaint shall specifically state the relief which the plaintiff claims. The same is reproduced hereunder : "7. Relief to be specifically stated Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for and the same rule shall apply to any relief claimed by the defendant in his written statement."
13. In view of the discussion held above, the plaint is found to be vague, as the particulars of the documents against which the relief is sought are not discernible, no relief in the form of declaration can be granted in favor of the Plaintiff. Hence, issue No. 1 is decided in favor of the defendants and against the Plaintiff.
14. On the basis of the contents of the written statement, issue No. 3 was framed by the Ld. Predecessor of this court. The burden of proving this issue is also on the plaintiff. The reason, except for forgery Page 15 of 22 and fabrication, for the nonoperation of the impugned documents against the plaintiff is not specified in the plaint. However, in Para No. 5 of the Replication, it is averred that the said documents are forged and fabricated as the alleged executant Sh. Nanwa Ram was not of sound mind at the relevant time, and could not have executed the said documents.
15. Plaintiff has not placed on record any proof to dispute the signatures of the Late Sh. Nanwa Ram on the gift deeds well as the trust deed. No witness was called to prove that the signatures purportedly affixed by Sh. Nanwa Ram on the impugned documents, did not belong to him. Further, these documents were neither sent to the FSL, nor any private handwriting expert's opinion was taken to show that the purported signatures don't belong to Late Sh. Nanwa Ram. Further, in the replication, plaintiff averred that Late Sh. Nanwa Ram was not of sound mind, and could not have affixed his signatures on the assailed documents. However, there is no whisper of this fact either in the plaint or the affidavit of evidence. Even no question pertaining to the same was put to the defendant during his cross examination. No witness was called by the plaintiff to prove the alleged unsoundness of mind. Further, Late Sh. Page 16 of 22 Nanwa Ram was not an executant to the supplementary trust deed dated 03.09.2012. The defence of unsoundness of mind, as taken by the plaintiff, would certainly not be applicable for impugning the supplementary trust deed. Hence, I am of the opinion that plaintiff miserably failed to prove that the gift deed dated 05.06.1998 and the other documents are forged and fabricated.
16. Accordingly, Issue No. 3 is also decided in favor of the defendants and against the plaintiff.
Issue No. 4
Whether the present suit is barred by limitation? OPD
17. The burden of proving this issue was on the defendant. The present issue was framed vide order dated 27.08.2022 during the final arguments. It was argued by Ld. Counsel for the defendant that the present suit is clearly barred by limitation as the impugned Gift deed and the trust deed were made in the year 1998 and 2002 respectively, while the present suit was filed only in the year 2015. Page 17 of 22
18. As already observed above, the plaintiff has not amended his plaint after the filing of the written statement to suggest that he came to know about the impugned documents only after the filing of the written statement and the production of the documents. Even the limitation clause/Cause of action clause of the plaint is silent as to when the plaintiff came to know about the said documents. Plaintiff has cleverly drafted his case in such a manner that the cause of action for the prayer of declaration, and the fact that same is in limitation, is not averred at all. In such circumstances, this court presumes that the plaintiff was aware of the impugned Gift deed and the trust deed from the date of their execution i.e. 05.06.1998 and 17.05.2002 respectively. As per Article 56 of The Limitation Act, a suit seeking declaration of forgery of an instrument issued or registered, must be filed within 3 years from the date when the issuance or registration becomes known to the plaintiff. As per article 58 of The Limitation Act, a suit seeking any other declaration, must be filed within 3 years from the date when the right to sue first accrues. As already stated, the plaintiff has not specified the date of knowledge of the issuance of the documents or when the right to sue first accrued, and it is presumed that he came to know about the same and Page 18 of 22 the right to sue accrued on the day of the execution of these documents. However, the present suit was filed in the year 2015, after the expiry of the prescribed limitation period.
19. As regards, supplementary trust deed dated 03.09.2012, the suit is filed within prescribed limitation period in view of Article 56 and 58 of The Limitation Act, 1963.
20. Hence, it is held that the suit in respect of the impugned Gift deed dated 05.06.1998 and the trust deed dated 17.05.2002, is barred by limitation. However, the suit is filed within limitation in respect of supplementary trust deed dated 03.09.2012.
21. Accordingly, this issue is partly decided in the favor of the defendant.
Issue No. 2
Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for in prayer Clause (b) of the plaint? OPP.
Page 19 of 22
22. The burden of proving this issue was on the plaintiff. In order to prove the present case, the plaintiff had to prove that, a) he has a right in the suit property, b) he is in the possession of the suit property, and (c) the defendant is invading or threatening to invade such right. It is the case of the plaintiff that late Sh. Nanwa Ram was the Khalifa of Akhara known as "Adarsh Vyayamshala", and during his lifetime, he executed a will dated 17.07.1995 and bequeathed the suit property in favor of the plaintiff. Plaintiff is claiming his right in the suit property on the basis of the said will which is also exhibited as Ex.PW1/2. However, no attesting witness was called by the plaintiff to prove the same as per the mandate of law. In absence of the attesting witnesses, the will cannot be proved, and shall not be read for the purpose of deciding the present issue.
23. Plaintiff has also maintained his suit on the basis of possession in the suit property. However, he has not placed on record any document to show his possession. On the other hand, Ld. Counsel for the defendants brought the attention of the court towards the report of the Ld. Commissioner dated 11.01.2017, appointed by the court as per which the suit premises was found locked on the day of inspection i.e. Page 20 of 22 25.12.2016, and the key to the same was produced by the defendants. It is further mentioned in the report that the key to the Hanuman Mandir gate as well as to the room was also in the possession of the defendants. This clearly shows that the defendants were in the possession of the suit premises on the date of inspection. In order to prove the possession, Ld. Counsel for the plaintiff relies upon the cross examination of DW1 dated 04.05.2022, in which it was deposed by the witness that till the year 2015, the plaintiff was in joint possession of the suit property. No question regarding the date of the consequent dispossession was asked from the witness. This testimony would not lend any assistance to the case of the plaintiff as the present suit was filed in the month of July, 2015, and it is not clear either from the pleadings or the testimony of DW1 that the plaintiff was in the possession of the suit property on the date of filing of the suit. Further, even if the plaintiff was dispossessed subsequent to the filing of the suit, the court was never apprised about the same. No application for the restoration of the possession or the amendment of the plaint was ever filed in view of the subsequent development. Page 21 of 22
24. In view of the aforesaid discussion, I am of the opinion that the plaintiff miserably failed to prove any right in the suit property. Since, plaintiff has no right in the suit property, relief of Permanent Injunction can not be granted in favor of him. Hence, this issue is decided in favor of the defendants and against the plaintiff.
Relief.
25. In view of the aforesaid discussions, the suit of the plaintiff is hereby dismissed.
Parties to bear their own costs.
Decreesheet be prepared accordingly.
File be consigned to record room as per rules.
Announced in the open ( Kartik Taparia ) Court today on 22.09.2022. Civil Judge02 (Central), Tis Hazari Courts, Delhi.
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