Delhi District Court
Shyam Lal Gupta vs Anand Prakash Gupta on 2 May, 2026
-1-
IN THE COURT OF SH. PRITAM SINGH,
DISTRICT JUDGE (DJ-04) SOUTH EAST, DISTRICT COURTS,
SAKET, NEW DELHI
Civ DJ No. 11142/2016
Old case no.3041/2012
CNR No. DLSE01-006521-2016
Shyam Lal Gupta (Since Deceased)
(Through Legal Representative)
Sh. Sanjeev Gupta (Since Decd.)
Through Legal Representatives
1. Smt. Ritu Gupta
W/o late Sh. Sanjeev Gupta
R/o A-195, 2nd Floor,
Defence Colony,
New Delhi-110024.
2. Miss Shreya Gupta
D/o late Sh. Sanjeev Gupta
R/o A-195, 2nd Floor,
Defence Colony,
New Delhi-110024.
3. Miss Srishti Gupta
D/o late Sh. Sanjeev Gupta
R/o A-195, 2nd Floor,
Defence Colony,
New Delhi-110024.
........... Plaintiff
VERSUS
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And
Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta
-2-
1. Sh. Anand Prakash Gupta (Since Deceased)
(Through Legal Representatives)
1A. Sh. Jagdish Kumar Gupta
S/o Late Sh. Anand Prakash Gupta
R/o A-195, Ground Floor,
Defence Colony,
New Delhi-110024.
1B. Sh. Balram Gupta
S/o Late Sh. Anand Prakash Gupta
R/o A-195, First Floor,
Defence Colony,
New Delhi-110024.
1C. Sh. Rajesh Gupta
S/o Late Sh. Anand Prakash Gupta
R/o Kotla Mubarakpur,
New Delhi.
2. Smt. Kaushal Devi
W/o Late Sh. Anand Prakash Gupta
R/o A-195, Ground Floor,
Defence Colony, New Delhi-110024.
3. Sh. Puran Mal Gupta
W/o Late Sh. Mool Chand Gupta
R/o A-328, Defence Colony,
New Delhi-110024.
4. Smt. Anguri Devi
W/o Late Sh. S.K Gupta
R/o A-305, Defence Colony,
New Delhi-110024.
5. Smt. Ritu Srivastava
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And
Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta
-3-
W/o Sh. Sanjeev Anand
R/o A-207, Defence Colony,
New Delhi-110024.
6. Sh. Sanjeev Anand
R/o C-207, Defence Colony,
New Delhi-110024.
7. Land and Development Officer
Land and Development Office,
Ministry of Urban Development,
Govt. of India, Nirman Bhawan,
New Delhi.
........ Defendants
Date of institution of the suit : 03.10.2012
Date on which order was reserved : 15.04.2026
Date of decision : 02.05.2026
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
WITH RESPECT TO THE PROPERTY SITUATED AT A-195,
SECOND FLOOR WITH TERRACE RIGHTS, DEFENCE
COLONY, NEW DELHI
AND
Civ DJ No.11143/2016
Old Case No.2344/2012
CNR No. DLSE01-006530-2016
1. Sh. Anand Prakash Gupta (Since Deceased)
(Through Legal Representatives)
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And
Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta
-4-
1A. Sh. Jagdish Kumar Gupta
S/o Late Sh. Anand Prakash Gupta
R/o A-195, Ground Floor,
Defence Colony,
New Delhi-110024.
1B. Sh. Balram Gupta
S/o Late Sh. Anand Prakash Gupta
R/o A-195, First Floor,
Defence Colony,
New Delhi-110024.
1C. Sh. Rajesh Gupta
S/o Late Sh. Anand Prakash Gupta
R/o Kotla Mubarakpur,
New Delhi.
2. Smt. Kaushal Devi
W/o Late Sh. Anand Prakash Gupta
R/o A-195, Ground Floor,
Defence Colony, New Delhi-110024.
........... Plaintiffs
VERSUS
1. Shyam Lal Gupta Since Deceased
(Through Legal Representative)
Sh. Sanjeev Gupta (Since Deceased)
Through Legal Representatives
1A. Smt. Ritu Gupta
W/o late Sh. Sanjeev Gupta
R/o A-195, 2nd Floor,
Defence Colony,
New Delhi-110024.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And
Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta
-5-
1B. MISS SHREYA GUPTA
D/o late Sh. Sanjeev Gupta
R/o A-195, 2nd Floor,
Defence Colony,
New Delhi-110024.
1C. MISS SRISHTI GUPTA
D/o late Sh. Sanjeev Gupta
R/o A-195, 2nd Floor,
Defence Colony,
New Delhi-110024.
........ Defendants
Date of institution of the suit : 06.08.2012
Date on which order was reserved : 15.04.2026
Date of decision : 02.05.2026
SUIT FOR POSSESSION, RECOVERY OF MESNE PROFITS
AND FOR PERMANENT INJUNCTION
JUDGMENT
1. By this common judgment, I shall dispose of the suit ti-
tled Shyam Lal Gupta Vs. Anand Prakash Gupta & Ors. bear- ing no. 11142/2016 (Old Case No.3041/2012) and the suit ti- tled Anand Prakash Gupta & Anr. vs. Shyam Lal Gupta bear- ing no. Civ DJ No.11143/2016 (Old Case No.2344/2012) as both the suits are connected and vide order dated 02.04.2014 both the suits were clubbed together and common issues were framed. Common evidence was also lead in both the suits. The suit "Shyam Lal Gupta Vs. Ananad Prakash Gupta & Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -6- Ors" bearing no. 11142/2016 (Old Case No.3041/2012) was treated as main suit. It is clarified that for the purpose of con- venience the plaintiff and defendants in the suit "Shyam Lal Gupta Vs. Ananad Prakash Gupta & Ors" bearing no. 11142/2016 (Old Case No.3041/2012) will be referred to as plaintiff and defendants in both the suits.
2. The brief facts of the case "Shyam Lal Gupta Vs. Anand Prakash Gupta & Ors" bearing no. 11142/2016 (Old Case No.3041/2012) as stated in the plaint are that plaintiff is owner and in possession of the 2nd floor of the property bear- ing no. A-195, Defence Colony, New Delhi. Defendant no.1 is elder brother of plaintiff and defendant no.2 is wife of defen- dant no.1 and they both are residing at the ground floor prop- erty bearing no.A-195, Defence Colony, New Delhi. Defen- dant no.3 is also elder brother of the plaintiff. The defendant no.4 is the wife of late Sh. S.K Gupta, who was the eldest brother of the plaintiff and defendant no.1 and 3. Defendant no.5 is Power of Attorney holder in whose favour the defen- dant no.3 allegedly executed the Power of Attorney in respect of 50 % share in property A-195, Defence Colony, New Delhi. The defendant no.6 had purchased the alleged 50 % share of defendant no.3 in the property bearing no.A-195, De- fence Colony, New Delhi and later on had illegally sold the said share in favour of defendant no.2. Defendant no.7 is Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -7- L&DO which had issued the perpetual lease deed with respect to property bearing no.A-195, Defence Colony, New Delhi.
3. It is further stated that the property no.A-195, Defence Colony, New Delhi (hereinafter referred to as 'said property') was originally owned by one Sh. Madan Mohan Issar, who was allotted the said property through a perpetual lease deed on 25.01.1959 by defendant no.7. Sh. Mool Chand Gupta, fa- ther of plaintiff and defendant no.1 and 3 had purchased the said property in the year 1964, through his funds, jointly in the names of defendant no.1 and 3 from Sh. Madan Mohan Is- sar vide a sale deed dated 08.07.1964. In the year 1964 the only earning member in the family was Late Sh. Mool Chand Gupta and the business was primarily carried by late Sh. Mool Chand Gupta. Defendant no.1 and 3 were only helping late Sh. Mool Chand Gupta. The entire control of the business which was a shop situated in Defence Colony in the name of 'Defence Store' was run by late Sh. Mool Chand Gupta.
4. It is further stated that at the time of purchase of the said property by late Sh. Mool Chand Gupta, it comprised of two bedrooms, one store, one bathroom, one WBC, one kitchen with open space and a boundary wall with electricity with flush fittings etc. Thereafter, late Sh. Mool Chand Gupta carried out the construction of ground floor, first floor and second/barsati floor. The second/barsati floor comprised of Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -8- two bedrooms and one drawing cum dining room, one kitchen and one bathroom.
5. It is further stated that the ground floor was occupied by the plaintiff along with late Sh. Mool Chand Gupta. The plaintiff got married in the same house and continued to re- side on the ground floor of the said property. The first floor of the said property was occupied by defendant no.3 along with his family members, and the second floor was in occupation of defendant no.1 along with his family members. The date of birth of the plaintiff is 17.03.1949 and thus, the plaintiff was minor in the year 1964 when the said property was purchased by his father in the joint name of defendant no.1 and 3, how- ever, it was always the intention of late Sh. Mool Chand Gupta that the said property would be joint property of all the three brothers i.e. plaintiff and the defendant no.1 and 3. The defendant no.1 and 3 had no independent income and were to- tally dependent on the earnings of their father in the year 1964.
6. It is further stated that in the year 1985, late Sh. Mool Chand Gupta wished to divide all the assets created either by him or through his efforts and his money among his sons and accordingly a family settlement was arrived at among all the family members, in respect of all movable properties, includ- ing cash and jewellery as well as the various immovable Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -9- properties which were created by late Sh. Mool Chand Gupta. A family settlement was also arrived at in respect of property bearing no.A-195, Defence Colony, New Delhi sometime in the month of August, 1985 which was agreed to be reduced in writing, with the consent and at the instance of late Sh. Mool Chand Gupta, among the plaintiff and the defendant no.1 and
3. Thus, by virtue of family settlement/ agreement dated 30.08.1985 it was agreed that the ground floor of the said property would be owned and possessed by defendant no.1, who shall be the exclusive owner of the said ground floor. The first floor of the said property was agreed to be owned by defendant no.3 but as he was already in possession of first floor, it was agreed that he would continue to be in possession of first floor. The plaintiff who was residing on the ground floor along with his family members and late Sh. Mool Chand Gupta agreed to shift to second floor of the said property in terms of said family settlement/agreement dated 30.08.1985 which was executed at the instance of late Sh. Mool Chand Gupta. By virtue of said family settlement the plaintiff be- came the absolute owner of the second floor with terrace rights. Thereafter, the plaintiff with his own funds constructed the entire second floor which now comprises of four bed- rooms, drawing cum dining room, two bathroom, one kitchen and two toilets and the same has been shown in the site plan Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -10- filed with the plaint. Since the defendant no.1 was getting the ground floor which was fully constructed, it was agreed that the defendant no.1 would pay a sum of Rs.50,000/- received by him by renting out the first floor of shop no.19, Defence Colony, New Delhi.
7. It is further stated that the plaintiff also started deposit-
ing the house tax in respect of the 2nd floor of the said prop- erty and continued to deposit the same. The defendant never objected to the deposit of property tax by the plaintiff with re- spect to the second floor of the said property. The electricity meter and water meter were also installed for the second floor in the name of the plaintiff.
8. It is further stated that sometime in the month of Sep-
tember, 2009, the plaintiff came to know that the defendant no.3 had sold his 1/3rd share in the said property in favour of defendant no.6.The plaintiff on coming to know about the said sale, sent a legal notice dated 21.09.2009 to defendant no.3 through his advocate thereby calling upon the defendant no.3 to handover the original family settlement/agreement dated 30.08.1985 to the plaintiff. However, the defendant no.3 did not handover the same to the plaintiff . The plaintiff was under the bonafide impression that defendant no.3 had sold his 1/3rd share in the suit property to the defendant no.6. However, sometime in the first week of October, 2009, the Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -11- plaintiff was shocked to know that one Sh. Sanjeev Anand, defendant no.6 herein had vacated the first floor and defen- dant no.1 came to occupy the said first floor of the property. The plaintiff immediately approached the defendant no.3 to make inquiries about the same but the defendant no.3 did not provide any information to the plaintiff.
9. It is further stated that sometime in the first week of June, 2011 the plaintiff came to know that the defendant no.1 was trying to get the entire leasehold property converted into freehold in his own name in the office of defendant no.7 and therefore, the plaintiff immediately wrote a letter dated 06.07.2011 to the defendant no.7 bringing it to the notice of defendant no.7 that the plaintiff is 1/3rd share holder/owner of the said property and he occupying the second floor along with terrace rights in the said property. A request was made to defendant no.7 that the name of the plaintiff may be entered in the records of defendant no.7 as joint 1/3rd owner of the suit property.
10. It is further stated that a letter dated 26.08.2011 was re-
ceived from the office of the defendant no.7 in reply to the said letter dated 06.07.2011 (wrongly written as 05.08.2011). By virtue of the said letter dated 26.08.2011 it was informed to the plaintiff by the defendant no.7 for the first time that the said property was being jointly mutated in the names of the Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -12- defendants nos.1 and 2 and that the defendants nos.1 and 2 had also applied for conversion of the leasehold rights with respect to the said property into freehold. However, on re- quest being made by the plaintiff, vide letter dated 06.07.2011 (date wrongly typed as 05.08.2011), the defendant no.7 as- sured the plaintiff that the said conversion had been put on hold by the defendant no.7. Subsequently, another letter dated 11.09.2011 was issued by the plaintiff to the defendant no.7 which was duly received in the office of the defendant no.7 on 12.09.2011. It was informed through the said letter that a Family Settlement/Agreement dated 30.08.1985 was entered into between the plaintiff and the defendants nos.1 and 3 by virtue of which the said property was divided into three equal shares out of which the plaintiff is the exclusive owner of his 1/3rd share being the Second Floor along with terrace rights.
11. It is further stated that no reply was received by the plaintiff to the said letter dated 11.09.2011 from the office of the defendant no.7. Accordingly, a legal notice dated 29.10.2011 U/s 80 CPC was got issued by the plaintiff through his advocate to the defendant no.7 wherein the defen- dant no.7 was called upon not to convert the said property into freehold in favour of the defendants nos.1 and 2 since the plaintiff is the exclusive owner of 1/3rd share in the said property being the owner of the Second Floor along with Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -13- terrace rights in the said property. The receipt of the said legal notice dated 29.10.2011 was duly confirmed by the office of the defendant no.7 vide its letter dated 09.01.2012 and it was assured to the plaintiff that the alleged conversion was put on hold by the defendant no.7.
12. It is further stated that thereafter, the plaintiff received a notice dated 05.07.2012 issued by the defendant no.1 thereby calling upon the plaintiff to vacate the Second Floor, along with terrace of the said property. Also, an illegal demand was raised by the defendant no.1 thereby alleging that an alleged rent of Rs.8,000/- per month towards occupying the said property was liable to be paid by the plaintiff. In the said legal notice it was alleged that the plaintiff had taken the said Sec- ond Floor with terrace, of the said property on a monthly rent of Rs.8,000/-. The plaintiff immediately got issued a reply dated 12.07.2012 to the said legal notice through his Advo- cate wherein it was clearly brought to the notice of the defen- dant no.1 that the plaintiff is the exclusive owner of the said Second Floor along with terrace right in the said property. Subsequently, the plaintiff received a notice dated 07.08.2012 in compliance of the Order 39 Rule 3 of CPC from one M/s Gupta & Associates on behalf of the defendant nos.1 and 2 along with a copy of the plaint of suit bearing No.2334 of 2012 which was a suit filed by the defendant nos.1 and 2 Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -14- against the plaintiff for seeking possession and recovery of al- leged mesne profits and permanent injunction with respect to the said Second Floor of the said property.
13. It is further stated that on receipt of the said notice dated 07.08.2012 along with copy of the plaint and docu- ments, the plaintiff for the first time was shocked to realize that despite the assurances being given by the defendant no.7 that the said property would not be converted into freehold, in a most illegal manner and in collusion with the defendant nos.1 and 2, the officials of the defendant no.7 executed a conveyance deed dated 22.06.2012 in favour of the defen- dants nos.1 and 2 with respect to the entire property situated at A-195, Defence Colony, New Delhi.
14. It is further stated that on receipt of the said Notice dated 07.08.2012, along with the copy of the plaint and other documents, the plaintiff further made enquiries from the Sub- Registrar Office, New Delhi and was shocked to realize that, with a view to commit fraud upon the plaintiff, the defendant no.3, in collusion with the defendant nos.5 and 6, had exe- cuted an alleged Agreement to Sell dated 05.09.2005, in favour of the defendant no. 6 with respect to the alleged 50% share of the Property situated at A-195, Defence Colony, New Delhi. Thus, the defendant no.3 was not entitled to execute an alleged Agreement to Sell with respect to the 50% share of Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -15- the said property. The defendants committed fraud with inten- tion to usurp 1/3rd share of the plaintiff in the said property. The plaintiff further came to know, after receipt of the copy of the plaint of the suit bearing No. 2344 of 2012 that the defen- dant no.6 had allegedly executed an illegal Sale Deed dated 31.08.2009, through the defendant no.5 with respect to the al- leged 50% share in the said property in favour of the defendant no.2.
15. It is further stated that the defendant no.3 had also ille-
gally executed a General Power of Attorney dated 05.09.2005 in favour of the defendant no.5 with regard to 50% share in the property situated at A-195, Defence Colony New Delhi. The alleged General Power of Attorney is totally illegal, void ab initio, non-est in the eyes of law and is liable to be set aside. It is further stated that the above mentioned facts clearly show that the alleged Sale Deed dated 31.8.2009 exe- cuted in favour of the defendant no.2 registered as Document No.11400 in Addl. Book No.1, Vol. No.9483 from Pages 97- 104 on 01.09.2009 is absolutely illegal, no nest and void ab- initio and is likely to be declared as null and void by this court. Further, the alleged conveyance deed thereby convert- ing the said property situated at A-195, Defence Colony, New Delhi from leasehold into freehold on 22.6.2012 which was registered as Document No.10726 in Book No.1, Vol.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -16- No.12337 on Pages 40-43 on 29.6.2012 is absolutely illegal, no nest and void ab-initio and is likely to be declared as null and void by this court. Hence the instant suit was filed seeking the following prayers:-
I. To pass a decree of declaration in favour of the plaintiff and against the defendants specially the defen- dants nos.1 and 2 thereby declaring and holding that the alleged Sale Deed dated 31st August, 2009 with re- spect to Second Floor of the property situated at A-195, Defence Colony, New Delhi, registered as Document No.11400 in Addl. Book No.1, Vol. No.9483 from Pages 97-104 on 1.9.2009 illegal, no nest and void ab-initio and thereby declaring the same as null and void; and II. To pass a decree of declaration in favour of the plaintiff and against the defendants specially the defen- dant nos.3 thereby declaring and holding that the al- leged Agreement to Sell allegedly executed by defen- dant No.3 in favour of the defendant no.6 registered as Document No.10006 in Addl. Book No.4, Vol. No.2592 on Pages 61-64 on 5.9.2005 with respect to first Floor of the property situated at A-195, Defence Colony, New Delhi illegal, no nest and void ab-initio and thereby declaring the same as null and void.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -17- III. To pass a decree of declaration in favour of the plaintiff and against the defendants specially the defen- dant nos.1, 2 and 7 thereby declaring and holding that the alleged conveyance deed converting the said prop- erty situated at A-195, Defence Colony, New Delhi from leasehold into freehold on 22.06.2012, registered as Document No.10726 in Book No.1, Vol. No.12337 on Pages 40-43 on 29.6.2012 illegal, no nest and void ab-initio and is likely to be declared as null and void; and IV. To pass a decree of declaration in favour of the plaintiff and against the defendants specially the defen- dant nos.3 and 5 thereby declaring and holding that the alleged General Power of Attorney executed by the de- fendant no.3 in favour of the defendant no.5 regarding the undivided share of the defendant no.3 in the prop- erty bearing No. A-195, Defense Colony, New Delhi, registered as Document No. 10006 in Book No.4, Vol. No.2592 on Pages 61-64 on 5.9.2005 illegal, no nest and void ab-initio and is likely to be declared as null and void; and V. To pass a decree of permanent injunction thereby restraining the defendants specially the defendant nos.1 and 2 and their representative, agents, servants, Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -18- employees, attorneys, officials etc. from selling alien- ating or creating any third party interests with respect to the said suit property being Second Floor of the property situated at A-195, Defence Colony, New Delhi or any portion thereof, in favour of any third person; and VI. To pass a decree of permanent injunction in favour of the plaintiff, and against the defendants spe- cially the defendant nos.1 and 2, thereby restraining the defendants, their representative, agents, servants, employees, attorneys, officials etc., from forcibly dis- possessing the plaintiff from the said suit property be- ing Second Floor of the property situated at A-195, Defence Colony, New Delhi or any portion thereof; and VII. To pass a decree of permanent injunction in favour of the plaintiff, and against the defendants spe- cially the defendant nos.1 and 2, thereby restraining the defendants, their representative, agents, servants, employees, attorneys, officials etc., from interfering in the peaceful enjoyment of the possession by the plain- tiff with respect to the said suit property being Second Floor of the property situated at A-195, Defence Colony, New Delhi or any portion thereof.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -19- WRITTEN STATEMENT OF DEFENDANT NO.1 AND 2.
16. A joint written statement was filed on behalf of defen-
dant no.1 and 2. It is not disputed that the defendant no.1 and 3 are elder brothers of the plaintiff. It is stated that the ground floor and first floor of the said property are in the possession of defendant no.1 and 2. It is denied that the property was purchased by late Sh. Mool Chand Gupta from his funds. It is stated that the said property was purchased by defendant no.1 and 3, and the construction was raised by defendant no.1 and 3 being owners of the said property.
17. It is further stated that the plaintiff was allowed to re-
side at the second floor of the said property at the request of their father and it was being told by late Sh. Mool Chand Gupta that the plaintiff would pay a sum of Rs.4,000/- each to defendant no.1 and 3 as a license fee but defendant no.1 or 3 never accepted license fee from the plaintiff. The plaintiff as- sured the defendant no.1 and 3 that he would vacate the 2nd floor as early as possible on acquiring some other property for his residence.
18. It is further stated that during the lifetime of the father of the plaintiff and defendant no.1 and 3 a flat was booked in the name of plaintiff with the DDA under Self Financing Scheme in the year 1983 and so it was being assured by the plaintiff that as and when the said flat would be allotted to Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -20- him and would be given possession, the plaintiff would vacate the second floor of the said property, but despite the flat being allotted to him in the year 1989 bearing no.7035, Sector-B, Vasant Kunj and the possession of said flat was given to plaintiff on 18.08.1989, the plaintiff did not vacate the second floor of the said property. However, the defendants were not aware of the same for many years as the plaintiff used to say that he would vacate the second floor after getting the DDA flat.
19. It is denied that late Sh. Mool Chand Gupta had wished to divide the property bearing no.A-195, Defence Colony, New Delhi among plaintiff and defendant no.1 and 3. Late Sh. Mool Chand Gupta had four sons and the plaintiff has also stated that Sh. S.L Gupta is fourth son of late Sh. Mool Chand Gupta. It is further denied that a settlement/agreement dated 30.08.1985 was arrived at and the second floor of the said property was came to the share of the plaintiff. No such family settlement was ever arrived at or reduced into writing. It is further denied that the plaintiff had raised the construc- tion on the second floor. It is further stated that the plaintiff is not having the alleged family settlement/agreement dated 30.08.1985 and a fabricated copy of the same has been supplied with the plaint.
20. It is further denied that the assets such as jewellery, Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -21- cash and immovable properties of late Sh. Mool Chand Gupta were divided in the month of August, 1985. It is further stated that the plaintiff dishonestly may be paying the property tax as claimed by him. The plaintiff dishonestly managed in getting installation of electricity and water connection.
21. It is further stated that in the first quarter of 2008, de-
fendant no.6 had removed some wall of the first floor and at that time the plaintiff came to know that defendant no.3 had sold his share to defendant no.6. The plaintiff did not raise any objection at that time and the sons of defendant no.1 and 2, namely Jagdish Gupta made complaint to the Police against defendant no.6 for removal of wall etc.
22. It is further stated that defendant no.1 and 2 were hav-
ing their right to get the property freehold in their name as they are the original as well as subsequent purchasers and the plaintiff was well aware of the transaction of defendant no.5 and 6, and later on the transfer of 50 % share in the name of defendant no.2. It is further stated that whatever action had been taken by defendant no.1 and 2 were well within their rights and they had filed the suit against the plaintiff as per law. All other averments made in the plaint were denied. REPLICATION TO WRITTEN STATEMENT OF DEFENDANT NO.1 AND 2.
23. Replication was filed by the plaintiff to the written Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -22- statement of defendant no.1 and 2 and reiterated and re-af- firmed the stand taken by the plaintiff and denying the con- tents of the written statement of the defendant no.1 and 2. WRITTEN STATEMENT OF DEFENDANT NO.4.
24. Written statement was filed on behalf of defendant no.4.
It is stated in the written statement of defendant no.4 that in the year 1964 when the said property was purchased, only late Sh. Mool Chand Gupta was earning member of the family and the said property was purchased by his funds jointly in the names of defendant no.1 and 3. It is further stated that in the year 1985 late Sh. Mool Chand Gupta with the intent to divide his assets between the plaintiff and the defendant no.1 and 3 en- tered into a family settlement in respect of movable properties including cash and jewellery as well as the various immov- able properties which were created by late Sh. Mool Chand Gupta. A family settlement was arrived at on 30.08.1985 with respect to property bearing no. A-195, Defence Colony, New Delhi which was part of larger family settlement and which was arrived at among all the family members including hus- band of defendant no.4 and it was signed by defendant no.4 also and which was witnessed by late Sh. Mool Chand Gupta. The plaintiff as well as defendant no.1 and 3 signed the fam- ily settlement dated 30.08.1985. Thus, the defendant no.4 has not opposed the suit of the plaintiff.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -23- WRITTEN STATEMENT OF DEFENDANT NO.7.
25. Written statement was also filed on behalf of defendant no.7 / L&DO. It is stated in the written statement of defendant no.7 that the plaintiff had informed the office of defendant no.7 on 07.07.2011 that there was family agreement executed on 30.08.1985. It is admitted that the plaintiff had sent a letter on 07.07.2011 to the defendant no.7 stating that plaintiff had also 1/3rd share in the said property. The plaintiff was in- formed by defendant no.7 on 26.08.2011 that as per record of defendant no.7 the said property stands mutated in the names of defendant no.1 and 2. Other averments of the plaint were denied for want of knowledge.
26. It is important to mention here that defendant no.3, 5 and 6 did not file written statement.
FACTS OF THE CASE TITLED "ANAND PRAKASH GUPTA & ANR. VS. SHYAM LAL GUPTA" BEARING NO. CIV DJ NO.11143/2016 (OLD CASE NO.2344/2012)
27. The brief the facts of the case "Anand Prakash Gupta & Anr. vs. Shyam Lal Gupta" bearing no.11143/2016 (Old Case no.2344/2012) as stated in the plaint are that the said property i.e. A-195, Defence Colony, New Delhi was purchased by de- fendant no.1 and defendant no.3 vide registered sale deed in the year 1964 and after the purchase it was duly mutated in their names in the records of L&DO (defendant no.7 in the Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -24- main suit). Defendant no.3 sold his 50 % share in the said property to defendant no.2 Smt. Kaushal Devi vide sale deed in the year 2009 and thus, defendant no.1 and 2 became the owner of the entire said property having 50 % share each.
28. It is further stated that Late Sh. Mool Chand Gupta dur-
ing his life time asked the defendant no.1 and 3 to allow the plaintiff to occupy the second floor of the said property and instructed the plaintiff to pay Rs.4,000/- to defendant no.1 and Rs.4,000/- to defendant no.3, however, defendant no.1 was not interested to accept any amount as license fee from the plaintiff. It is further stated that defendant no.1 and 3 were al- ways asking the plaintiff to vacate the 2nd floor of the said property but despite acquiring the other property the plaintiff did not vacate the 2nd floor. The plaintiff Shyam Lal Gupta is in fact either a person in permissible possession or a tres- passer. Defendant no.1 and 2 had served a notice to the plain- tiff dated 05.07.2012 asking him to vacate the 2nd floor within 15 days from the receipt of notice but the plaintiff failed to vacate the same.
29. It is further stated that the value of one floor measuring 181.43 Sq. Mtr in Defence Colony is not less than Rs.90 lakhs, therefore, the plaintiff is liable to pay Rs.1 lakh per month as mesne profits/damages till the 2 nd floor is actually vacated and handed over to defendant no.1 and 2. The Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -25- defendant no.1 and 2 in their suit titled Anand Prakash v. Shyam Lal Gupta" prayed that a decree of possession be passed against plaintiff Shyam Lal Gupta regarding the 2 nd floor of the said property as shown in the site plan. Further a decree of mesne profits/ damages from the date of filing of suit till actual possession is handed over to them @ Rs.1 lakhs per month. Further pass a decree of permanent injunction re- straining the plaintiff Shyam Lal Gupta putting anybody in the possession of the 2nd Floor of the property.
30. Plaintiff Shyam Lal Gupta has filed written statement to the suit of the defendant no.1 and 2. The plaintiff has reiter- ated in his written statement all the averments made by him in the plaint of his suit titled "Shyam Lal Gupta Vs. Ananad Prakash Gupta", therefore, the same are not repeated here for the sake of brevity.
ISSUES
31. From the pleadings of the parties, following issues were framed on 02.04.2014:-
1. Whether the plaintiff is co-owner of the second floor of property bearing No.A-195, Defence Colony, New Delhi by virtue of agreement dated 30.08.1985? OPP
2. If answer to issue No.1 is in favour of the plaintiff, whether the plaintiff is entitled to the de- cree of declaration declaring the sale deed dated 31.8.2009, agreement to Sell dated 5.9.2005, GPA dated 5.9.2005, and conveyance deed dated 22.6.2012 as null and void? If so, its effect? OPP
3. Whether the plaintiff is entitled to a decree of Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -26- permanent injunction? OPP
4. Whether the suit is barred by limitation?
OPD1& 2
5. Whether the suit is barred under Section 4 of the Benami Transactions (Prohibition) Act? OPD1&2
6. Whether defendants No.1 & 2 are entitled to the decree of possession from the plaintiff? OPD1&2
7. Relief.
32. Thereafter, on the application of defendant Anand Prakash a further issue i.e. issue no.8 was framed vide order dated 12.08.2021 as under:-
"Issue no.8 Whether Anand Prakash Gupta is enti- tled for mesne profits / damages if so at what rates? OPD."
33. Thereafter again, vide order dated 18.04.2024, after hearing Ld. Counsel for the parties it was ordered that issue no.4 qua limitation already framed on 02.04.2014 be also treated as issue framed in suit no.2344/12 titled Anand Prakash Gupta Vs. Shyam Lal Gupta and the onus of the same shall lie upon Shyam Lal Gupta, the defendant in the said suit. Therefore, the issue no.4 can be split in two parts as under:-
"Issue no.4(a): Whether the suit is barred by limitation? OPD 1 & 2.
Issue no.4(b): Whether the suit filed by Anand Prakash Gupta is barred by limitation? OPP. "
34. It is important to mention here that defendant no.1 Anand Prakash Gupta expired during the pendency of the suit and his legal heirs were brought on record vide order dated Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -27- 31.01.2018. Further, defendant no.4 Anguri Devi also expired during the pendency of the suit and vide order dated 11.02.2019 plaintiff was exempted from substituting the legal heirs of deceased defendant no.4. Further, plaintiff Shyam Lal Gupta expired and during the process of impleadment of his LRs, Sh. Sanjeev Gupta, the sole LRs of plaintiff Sh. Shyam Lal Gupa, also expired. Thereafter, an application U/o 22 Rule 3 r/w Section 151 CPC for substitution of LRs of de- ceased LR of the plaintiff Shyam Lal Gupta and the said application was allowed vide order dated 14.09.2022.
35. The evidence lead by Sh. Shyam Lal Gupta (plaintiff) and after his demise by his LRs would be considered as evi- dence of plaintiff in both the suits, and the evidence lead by defendant no.2 and LRs of defendant no.1 would be consid- ered as evidence of defendant no.1 and 2 in both the suits as it would be convenient to distinguish the evidence of the parties. No other defendants lead any evidence. EVIDENCE OF PLAINTIFF
36. In order to prove his case, the plaintiff / Sh. Shyam Lal Gupta examined himself as PW1 and his evidence by way of affidavit as Ex.PW1/A, he has reiterated and reaffirmed the stand taken by him in the plaint. Plaintiff also examined his son Sh. Sanjeev Gupta as PW2 and his evidence by way of af- fidavit as Ex.PW2/A. Sh. Vipul Kumar Gupta LR of plaintiff Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -28- also examined himself as PW3 and his evidence by way of af- fidavit as Ex.PW3/A. Plaintiff further examined Bhaure Lal, No.Y 160650000819, Designation Assistant Section Offier, Ministry/Office Urban Development, Nirman Bhawan (Land and Development Office) as PW4. Plaintiff also examined Sh. B.N Srivastava, Handwriting Expert as PW5 and his evidence by way of affidavit as Ex.PW5/A. Plaintiff relied upon the following documents:-
1. Copy of passport of plaintiff as Ex.PW1/1.
2. Copy of passport of wife of plaintiff Smt. Murti Devi Gupta as Ex.PW1/2.
3. The copy of family settlement/agreement dated 30.08.1985 as Mark PW1/3.
4. The property tax receipt with respect to 2 nd floor of the property situated at A-195, Defence Colony, New Delhi dated 27.03.2006, 07.04.2010 and 23.02.2012 as Ex.PW1/4, Ex.PW1/5 and Ex.PW1/6 respectively.
5. The various electricity bills with respect to the suit prop-
erty dated 30.07.2000, 28.09.2000, 30.01.2001, 28.03.2001, 30.05.2001, 03.03.2009, 05.05.2009, 07.01.2010, 08.11.2010, 18.04.2012, 18.06.2012 and 13.08.2012 as Ex.PW1/7, Ex.PW1/8, Ex.PW1/9, Ex.PW1/10, Ex.PW1/11, Ex.PW1/12, Ex.PW1/13, Ex.PW1/14, Ex.PW1/15, Ex.PW1/16, Ex.PW1/17 and Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -29- Ex.PW1/18 respectively.
6. The water charges bills for the suit property in the name of plaintiff dated 14.02.2003, 21.03.2009, 05.10.2009, 27.11.2009 and 09.06.2010 as Ex.PW1/18A, Ex.PW1/19, Ex.PW1/20 and Ex.PW1/21.
7. Insurance police of National Insurance Co. Ltd. for car of the plaintiff on the same address dated 27.11.2008 as Ex.PW1/22.
8. The office copy of legal notice dated 21.09.2011 issued to defendant no.3 as Mark PW1/23.
9. The letter dated 05.08.2011 issued by the plaintiff to defendant no.7 as Mark PW1/24.
10.The letter dated 26.08.2011 from the office of defendant no.7 as Mark PW1/25.
11.The letter dated 11.09.2011 issued by plaintiff to defendant no.7 as Ex.PW1/26.
12.The Legal notice dated 29.10.2011 U/s 80 CPC issued by plaintiff to defendant no.7 as Ex.PW1/27.
13.The letter dated 09.01.2012 issued by defendant no.7 as Mark PW1/28.
14.The copy of legal notice dated 05.07.2012 issued by defendant no.1 as Mark A.
15.Reply dated 12.07.2012 issued by plaintiff to the said legal notice through its advocate as Mark PW1/29.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -30-
16.The legal notice dated 07.08.2012 in compliance of Order 39 Rule 3 CPC from M/s Gupta & Associates on behalf of defendant no.1 and 2 as Mark B.
17.Copy of plaint of suit bearing no.2344 of 2012 as Mark C.
18.The copy of Conveyance Deed dated 22.06.2012 as Mark D.
19.The copy of agreement to sell dated 05.09.2005 in favour of defendant no.6 as Mark E.
20.Passport of Sh. Sanjeev Kumar Gupta PW2 bearing no.A-2466615 date of issue 22.01.1997 to date of expiry 21.01.2007 as Ex.PW2/1(OSR).
21.Passport of Sh. Sanjeev Kumar Gupta PW2 bearing no.G1842786 date of issue 04.04.2007 to date of expiry 03.04.2017 as Ex.PW2/2(OSR).
22.Pan Card of Sh. Sanjeev Kumar Gupta PW2 no.AFOPG3343K as Ex.PW2/3(OSR).
23.Driving License of the defendant issued on 11.01.2011 as Mark A.
24.Voter ID Card of PW2 bearing no.DL/01/004/294208 as Ex.PW2/5.
25.MTNL bill dated 25.09.2009 as Ex.PW2/6.
26.MTNL bill dated 03.10.2009 as Ex.PW2/7.
27.MTNL bill dated 01.02.2010 as Ex.PW2/8.
28.MTNL bill dated 01.04.2010 as Ex.PW2/9.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -31-
29.Airtel bill dated 15.02.2010 as Ex.PW2/10.
30.Airtel bill dated 27.02.2010 as Ex.PW2/11.
31.Airtel bill dated 27.03.2010 as Ex.PW2/12.
32.Airtel bill dated 24.03.2010 as Ex.PW2/13.
33.Airtel bill dated 27.11.2010 as Ex.PW2/14.
34.Birth certificate of the defendant with true type copy as Ex.PW1/15.
35.LIC premium receipt dated 03.09.2010 for policy no.115743296 as Ex.PW1/16.
36.LIC premium receipt dated 26.05.2011 for policy no.115743296 as Ex.PW1/17.
37.Statement of Citi Bank Credit Card dated 17.06.2020 as Ex.PW2/18.
38.The letter dated 05.08.2011 issued by the plaintiff to de-
fendant no.7 as Ex.PW4/1 (earlier marked as Mark PW1/24).
39.The letter dated 26.08.2011 from the office of defendant no.7 as Ex.PW4/2 (earlier marked as Mark PW1/25).
40.Report dated 30.05.2018 as Ex.PW5/1.
41.Photographs as Ex.PW5/2 to Ex.PW5/8.
37. During the cross-examination of PW4, following docu-
ments were put by Ld. Counsel for the defendant no.1 and 2 to PW4:-
1. The copy of Conveyance Deed dated 22.06.2012 as Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -32- Ex.PW4/DX (which was earlier marked as Mark D).
38. The cross-examination of PW1 conducted on 01.09.2016 before the court is as under:-
"The defence store was in existence since 1959. It is wrong to suggest that Anand Prakash was one of the partners in the de- fence store. Sh. Anand Prakash was only a helping hand. It is wrong to suggest that Sh. Anand Prakash was not merely a helping hand but was actively engaged in the business of the defence store. I do not remember the year of my marriage. The electricity connection in the second floor was got in- stalled in the year 1985. The second floor of the building in dispute was constructed in 1964. After 1964, Anand Prakash was residing in the second floor whereas I was residing on the ground floor. I shifted in the second floor after 1985. (Vol. Only after the family settlement). From the year 1964 to 1985 there was only one meter.
Q. How was the electricity being supplied to the second floor from 1964 to 1985?
Ans. The meter was installed on the ground floor and there was a wire leading to the second floor supplying electricity. The meter was in the name of Late Sh. Moolchand Gupta. It is wrong to suggest that I am deposing falsely to the effect that the meter was in the name of Sh. Moolchand Gupta. It is also wrong to suggest that there was no meter ever on the Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -33- premises in the name of Late Sh. Moolchand Gupta. There is a electricity connection in the premises in the name of Sh. Anand Prakash as on today. This meter was installed since 1964. I cannot say if there is a meter in existence as on date in the name of Kaushal Devi also. I have not placed on record any electricity bills for the period 1964 to 1985 when the me- ter was in the name of Late Sh. Moolchand Gupta. The prop- erty was purchased in the name of Sh. Pooranmal and Sh. Anand Prakash. (Vol. Because of I was minor at that time). The property was purchased on 08.02.1964. Before the year 1964, the electricity connection may be in the name of Madan Mohan Issar. I cannot produce the electricity bills in the name of Late Sh. Moolchand Gupta for the period 1964 to 1985. It is wrong to suggest that I cannot produce the electricity bills in the name of Late Sh. Moolchand Gupta as there was in fact no meter in existence in the name of Late Sh. Moolchand Gupta ever. It is wrong to suggest that the second floor was constructed only after the year 1990. It is correct that I have not placed on record any electricity bill for the period before 2000. It is wrong to suggest that the electricity meter in my name was got installed only in the year 1999 or 2000. I did not obtain any no objection certificate either from Anand Prakash and Pooran Mal for getting the electricity connection in my name. (Vol. Because there was no need). I do not Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -34- remember when I paid the property tax for the first time. The house tax is being deposited mostly online. The water meter was installed in the year 1985 after the settlement. It is correct that the water bills placed on record by me pertain to the year 2003 and afterwards. I do not have the water bills pertaining to the years before 2003. It is wrong to suggest that the water connection has also been installed only after the year 2002. It is correct that I have not taken any NOC from Anand Prakash and Pooranmal for installation of water connection. (Vol. Because there was no need).
It is correct that I have placed the agreement dated 30.08.1985 Mark PW1/3 and the same is only a photocopy. (Vol. The original is in the custody and possession of the defendant). It is wrong to suggest that I have not placed on record the origi- nal as there is no such document in existence. It is further wrong to suggest that there is no such document in the cus- tody and possession of the defendant. It is wrong to suggest that the photocopy Mark PW1/3 is a false, frivolous and forged photocopy as no such agreement was ever executed. The office copy of the legal notice dated 21.09.2011 as men- tioned by me in para 20 of my affidavit has not been tendered into evidence by me. It is correct that the legal notice that has been tendered into evidence as Mark PW1/23 is dated 21.09.2009 and 21.09.2011 as mentioned by me in my Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -35- affidavit. It is wrong to suggest that Mark PW1/23 is a fabri- cated document. The copy of Mark PW1/23 was obtained by me from S.P. Mehta and Company, Chartered Accountant. The office of the said chartered accountant was in Old Delhi somewhere near Ashok Vihar. I did not obtain any postal re- ceipt or the courier receipt of sending Mark PW1/23. I did not receive the amount of Rs.50,000/- as mentioned in document Mark PW1/3. It is wrong to suggest that no such amount was received by me because there was no such agreement ever been executed. It is wrong to suggest that I was allowed to re- side in the property as Late Sh. Moolchand Gupta requested Anand Prakash and Pooranmal that plaintiff Shyam Lal Gupta be allowed to reside in the second floor and at that time, it was being told by said Late Sh. Moolchand Gupta to Shyam- lal Gupta that he would pay a sum of Rs.4,000/- per month each to Sh. Anand Prakash and Pooranmal as a license fees. I have never paid any money towards any license fee or rent. (Vol. As the property devolved upon me in terms of the settle- ment, there was no occasion for paying any license fee or rent to the defendant by me). It is wrong to suggest that I had not paid any license fee as I had assured the defendant that I shall vacate the suit property as and when some suitable accommodation is found by me.
It is correct that I have applied with the DDA in the year 1983 Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -36- for allotment of flat. It is correct that at that time I was re- quired to give an affidavit to the DDA stating that I am not the owner of any other residential accommodation in Delhi. It is correct that I have been alloted the flat bearing no.7035, Sector-B Pocket 10, Vasant Kunj by DDA. It is correct that affidavit mentioning that I am not owning any property in Delhi. The said flat was being sold by me at that time. It is wrong to suggest that I never became the owner of the second floor or that I have sworn a false affidavit to this effect or that I have instituted a false suit. It is wrong to suggest that I have no right in property in dispute that the property no.A-195, Defence Colony."
39. The cross-examination of PW1 conducted on 01.12.2016 before the court is as under:-
"I lived in the Vasant Kunj flat 7035, for about 10-15 days. None of my son resided in the said flat. I live in the aforestated flat during the period that it was alloted. I do not remember the year. It is correct that the possession of the aforestated flat was handed over in 1989. It is correct that I lived in the said property during that period only. It is wrong to suggest that I gave an affidavit before the DDA that I do not own any other residential property in Delhi in the year 1989 when the possession was given. (Vol. I gave an affidavit to this effect in the year 1983 at the time of allottment). It is Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -37- correct that the document Mark PW1/3 tendered by me the photocopy does not contain the back page of the stamp paper. It is correct that Modern Bazar was my sole proprietorship firm.
Ques. Have you filed any electricity bill along with your list of documents dated 30.05.2000?
Ans. I have not filed any electricity bill along with the list of documents.
At this stage the witness is shown an electricity bill which is mentioned at Sr. no. 13 in the list of documents filed on be- half of the Sh. Shyam Lal, Plaintiff in Suit no.11142/16. The witness denies that this documents has been filed by him. The document is given Ex.No. DX.
Ques. I put it to you that Ex. DX bears the stamp of Modern 11 Bazar which is your proprietorship concern. What you have to say?
Ans. It is incorrect.
It is wrong to suggest that I am deposing falsely to the effect that this document i.e., now Ex.DX was not filed by you along with the plaint or that it does not bear the stamp of Modern Bazar. I cannot say since when the electricity meter exists in the name of Sh. Anand Prakash, at A-195, Defence Colony, New Delhi. It is not within my knowledge as to whether any electricity connection in his name exists as on Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -38- date over the premises in question. The document Mark PW1/3 was typed in 38, Defence Colony Market, which be- longs to one Sh. Puran Mal, and is known as a Defence store. It is wrong to suggest that no such document was typed in De- fence store as there was no typing machine there. It is a De- partmental Store. It is wrong to suggest that the property A-195, Defence colony was purchased jointly by Sh. Puran Chand and Sh. Anand Prakash from their joint fund only. It is wrong to suggest that the above said property was constructed upto 2nd floor from the joint funds of Sh. Anand Prakash and Sh. Puran Mal. It is further wrong to suggest that there is no house tax mutation in the name of Sh. Shyam Lal. It is wrong to suggest that Sh. Puran Mal had sold half portion of the above mentioned property in the year 2005. (Vol. in the year 2005 the Sh. Puran Chand had sold 1/3 share in the above mentioned property). It is wrong to suggest that Sh. Puran Mal had prepared documents for sale of half portion of the above mentioned property in the year 2005. (Vol. in the year 2005 the Sh. Puran Chand had prepared documents for sale of 1/3 share in the above mentioned property). It is wrong to suggest that I have filed a false suit and that I am deposing falsely or that the suit instituted against me by Sh. Anand Prakash is based on correct facts."
40. The cross-examination of PW2 conducted on Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -39- 21.04.2017 before the court is as under:-
"It is correct that the suit property is purchased in the year 1964 in the names of Puran Chand and Anand Prakash Gupta. Q. I put it to you that this fact that you have deposed in your affidavit in para 2 that the plaintiff is the owner of second floor of property i.e. A-195, Defence Colony was disclosed to you by your father, the plaintiff. What do you have to say? Ans. It is correct.
This fact that defendant no.6 had allegedly purchased the 1/3 share of defendant no.3 in the property as is deposed by me in para 3 of my affidavit was disclosed to me by defendant no.3 i.e. Sh. Puranmal. It is wrong to suggest that defendant no.3 was only owner of 50% share in the property described as A-195, Defence Colony or that I have falsely deposed in my affidavit to the effect that any such fact was disclosed to me by defendant no.3. It is wrong to suggest that the property was purchased from their own funds in the name of Puran Chand and Anand Prakash. It is wrong to suggest that I have deposed falsely in my affidavit to the effect that in the year 1964 the only earning member in the family was late Sh. Moolchand Gupta. It is correct that I was not even born in the year 1964. Defence store is running at shop no.38, Defence Colony. It is at present owned by Sh. Puran Chand. It is wrong to suggest that in the year 1964 in the business of Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -40- defence store Moolchand Gupta, Puran Chand and Anand Prakash Gupta were partners. It is wrong to suggest that the construction in the property was carried out by Puran Chand and Anand Prakash. It is correct that my deposition in para no.8 pertaining to the marriage of my parents in the suit prop- erty is deposed on the basis of information received from my father. (Vol. There was a family settlement and at the time of family settlement all these facts had come to light and dis- cussed). The said family settlement was arrived at in the year 1985 and at the defence store.
Q. Whether there is any written family settlement? Ans. Yes.
Q. Whether the facts as deposed by you in para 8 and 9 were also reduced into writing in the family settlement? Ans. No, these were only discussed except that my father was minor at that time.
It is wrong to suggest that no such family settlement either oral or in writing ever took place or that I have deposed falsely to this effect in my affidavit.
Q. Who all signed the family settlement?
Ans. Kaushal Devi, Anand Prakash, Shyam Lal Gupta, Pooran Chand Gupta and Moolchand Gupta was a witness to the settlement. I did not sign the same though I was present. Only one original document was prepared and I along with Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -41- Sh. Pooran Chand went and got four photocopies made of the family settlement. The original remained with Sh. Moolchand Gupta, my grandfather. It is wrong to suggest that no such family settlement was ever executed in writing or that the plaintiff has filed a forged and fabricated photocopy Mark PW1/3.
Shop no.18, Defence Colony was in the name of Shyam Lal Gupta, my father which has already been sold. I do not know when the shop was purchased by Shyam Lal Gupta. I do not remember if it was purchased before 1985 or not. I do not know when this shop no.18 was sold. After the sale of prop- erty Shop no.18, Defence Colony, my father purchased Shop no.35, Defence Colony.
Q. You have deposed in para no.11 that your grandfather Moolchand Gupta wished to divide all the assets created ei- ther by him or through his efforts and his money between his sons, kindly explain which assets and money were divided? Ans. Only property described as A-195, Defence Colony was divided. No other assets or money were divided. Q. Can you tell what all properties existed in the name of Late Sh. Moolchand Gupta in the year 1985? Ans. I am not sure. It is possible that defence store was also owned by late Sh. Moolchand Gupta in the year 1985."
41. The cross-examination of PW2 conducted on Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -42- 13.09.2017 before the court is as under:-
"I do not remember when my father was alloted the Vasant Kunj Flat by the DDA. I do not remember even whether the said flat was allotted before 1985 or after 1985. 1 do not re- member as to when my father gave application to DDA for al- lotment of the flat so I cannot say whether such application was given before 1985 or after 1985. For this reason I am un- able to admit or deny that the application for allotment was given in 1983 and allotment was made in 1989. I never resided in the said flat however my father resided in the said flat. (Vol. My father lived in the said flat for about 10-15 days). I do not remember in which year my father lived in the said Vasant Kunj DDA Flat.
Puran Chand sold his share in the property in dispute to Ms. Ritu Srivastava through Sanjeev Anand in year 2008. Pooran Chand gave the possession to them of the first floor of the property. At that time my family were residing on the second floor. We did not make any objection regarding the said sale by Pooran Chand and the possession. I have not seen the transfer paper executed by Pooran Chand. I do not know whether such transfer paper has been placed on record in the present suit. I do not know if in the document executed by Pooran Chand the share transfer ratio is mentioned as 50%. It is wrong to suggest that I have filed a false affidavit of Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -43- evidence. It is further wrong to suggest that I have just signed the affidavit which was got prepared by my father and with- out reading the same. It is wrong to suggest that I am deposing falsely at the instance of my father."
42. The cross-examination of PW3 conducted on 09.11.2017 before the court is as under:-
"Sh. Moolchand Gupta was my grandfather. I do not remem- ber the date of his death. However, he died after 1985. I do not remember my age at the time of his death. I can not even say whether I have attained the age of majority at the time of his death. I know the date of birth of my father. I just know from the documents. The property in which I am residing i.e. 117, Uday Park, New Delhi, was purchased in 2002-2003 in my and my wife's name, purchased exclusively out of our own funds. Property i.e. shop no: 35, Defence Colony, New Delhi, was originally in the name of my mother and after her death it was transferred in the name of my father and now my father has gifted the same by way of a registered gift deed in favour of myself and my two brothers.
I do not remember when was the property purchased in the name of my late mother. I knew about the purchase of the property at the time of its purchase in the name of my mother. My father had provided the funds for the acquisition of the property in the name of my mother. remember if when the Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -44- property no: 35, Defence colony, New Delhi, was purchased in my mother's name, my grand father Sh. Moolchand was alive or not. I do not know if my father is having any DDA flat in Vasant Kunj, New Delhi. As such I do not know if my father has ever deposited any amount for the purchase of the Vasant Kunj flat.
Q: Who told you that plaintiff / your father is the owner of the second floor of property no: A-195, Defence colony, New Delhi or whether you have seen any papers regarding that? A: I distinctly remember that it was the evening of friday, however, the exact date, month and year I do not remember that there arose a dispute between the family members in re- spect of the properties and a few days after this dispute had arrisen a memorandum of settlement was arrived at between the family member i.e. my grand father, my father and his brothers namely Sh. Puranmal Gupta, Sh. Anand Prakash Gupta and Smt Kaushalya Devi to the effect that our father shall own and occupy the second floor of property bearing number A-195, Defence Colony, New Delhi and it was also agreed that as the barsati portion was not fully constructed he shall be paid an amount of Rs. 50,000/- each by Sh. Pooran- mal Gupta and Sh. Anand Prakash Gupta for raising the con- struction. I must be about ten years of age at that rime. My date of birth is 21.08.1976. It is wrong to suggest that I have Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -45- deposed falsely regarding memorandum of settlement at the instance of my father. It is further wrong to suggest that no memorandum of settlement was ever been executed. Sh. Pooranmal / Defendant no: 3 is residing in A-block of De- fence colony but number I do not remember. I have men- tioned in my affidavit in paragraph 3 that the defendant no: 3 is the elder brother of the plaintiff and is residing at the above mentioned address and by the above mentioned address it is implied as A-195, Defence Colony, New Delhi, which is of suit property. It is correct that Sh. Puranmal was not residing in 2015 when I filed my evidence affidavit. I can not say since when Sh. Pooranmal had not been residing at A-195, Defence Colony, New Delhi. I can not say if Pooranmal shifted from A-195, Defence Colony after selling it to other place in Defence Colony. I have mentioned in my affidavit that Sh. Pooranmal sold his share in property no: A-195, De- fence Colony, New Delhi. I have mentioned in my affidavit that Sh. Pooranmal sold his share in 2009. My affidavit is prepared by my advocate on my instructions which was prepared in Uday Park in the office of my lawyer. My father was also with me at that time. I signed the same after reading it.
Q: You have mentioned a date regarding perpetual lease 20.01.1959, from where you got dictated this date ?
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -46- A: This date was told to me by my father.
Q: You have mentioned in para 5 of your affidavit that prop- erty no: A-195, Defence Colony, New Delhi, was originally purchased by your grand father late Sh. Moolchand Gupta jointly in the names of defendant no: 1 and 3. What is your source of this averment ?
A: I knew this fact and my father also told me about this fact. It is wrong to suggest that this fact has been incorporated in the affidavit at the instance of your father. Q: 1 put it to you that the contents of para 5 of your affidavit is here say as your had not personal knowledge about the facts deposed by you and it is at the instance of your father that you have deposed falsely in para 5 of your affidavit. What do you have to say?
A:It is incorrect. When I was young I used to hear such talks amongst the family members and my father has also told me about the fact deposed by me.
I can not give the year of construction as mentioned by me in para 7 of my affidavit to have been carried out by Sh.Moolc- hand Gupta. The such construction was carried out even be- fore my birth. I mentioned the contents of para 7 as I heard from the family members and was told to me by my father. It is wrong to suggest that para 7,8 and 9 of my affidavit has wrongly been mentioned at the instance of my father.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -47- Q: In para 10 of your affidavit you mentioned that infact the plaintiff and the defendant no: 1 and 3 as well as late Sh. S.L. Gupta were learning nuances of business from their father at that time. What is the period being referred to by you in this paragraph ?
A: The period being referred to is the period following the ac- quisition of property bearing no: A-195, Defence Colony, New Delhi.
Q: Can you tell the age of defendant no: 1, defendant no: 3 and Sh. S.L. Gupta at the time of acquisition of the property bearing no: A-195, Defence Colony, New Delhi ? A: The name of S.L. Gupta is misprint it should be Sh.S.K. Gupta. I do not know what was the age of the above three at that time.
It is correct that the point of time I referred to in para 10 of my affidavit pertains to before my birth. It is wrong to suggest that I have falsely mentioned the averments in para 10 at the instance of my father.
Q: You have stated in your affidavit that a family settlement was arrived at sometime in the month of August, 1985, which was agreed to be reduced in writing with the consent at the in- stance of Sh. Moolchand Gupta between the plaintiff and de- fendant no: 1 & 3. Can you disclose the date of this alleged family settlement ?
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -48- A: It was on 30.08.1985.
I can not say who got drafted / prepared the draft of the al- leged family settlement. It is wrong to suggest that no family settlement was ever been arrived and I have mentioned this fact falsely and wrongly at the instance of my father. It is in- correct to suggest that content of paragraph 12, 13, 14 & 15 of my affidavit are all false, frivolous and wrong and has been incorporated at the instance of my father. I do not know in whose name the shop no: 19, Defence colony, New Delhi was at that time. No amount of Rs. 50,000/- was paid by defendant no: 1. It is incorrect to suggest that since there was no family settlement so there was no question of payment of Rs. 50,000/-. I cant say in which year the electricity meter and the water meter was installed.
It is wrong to suggest that I have wrongly mentioned the aver- ment in paragraph 17 and 18 of my affidavit at the instance of my father.
I know Sh. Sanjeev Anand. Sh. Sanjeev Anand has purchased the property i.e. A-195, Defence Colony, New Delhi but I do not know whether he has resided or not in the said property. I have not seen the papers of purchase by Sh. Sanjeev Anand. He purchased from Sh. Pooranmal Gupta. It is incorrect to suggest that I have mentioned wrongly at the instance of my father that Sh. Sanjeev Anand has purchased 1/3 share in the Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -49- property where as there was only GPA /agreement to sell etc and that too of one half share of Sh. Pooranmal Gupta. The contents of paragraph 20 and 21 of my affidavit has been in- corporated as been told to me by my father. It is incorrect to suggest that I have no knowledge of the facts incorporated by me before my birth and even till 90s as I was minor at that time and has been incorporated at the instance of my father. It is further incorrect to suggest that the defendant no: 1 and 2 are the owners of the entire property and plaintiff is having no right title or interest in the second floor of the property bear- ing no: A-195, Defence Colony, New Delhi. It is further in- correct to suggest that my father was allowed to reside in the second floor of the property by late Sh. Moolchand Gupta on the request of my father by Sh. Anand Prakash and Sh. Pooranmal on the condition that he be allowed to reside in the second floor on payment of Rs. 4000/- per month each to Sh. Anand Prakash and Sh. Pooranmal Gupta as a license fees. It is incorrect to suggest that I am deposing falsely."
43. The cross-examination of PW4 conducted on 30.11.2017 before the Ld. Local Commissioner is as under:-
"I have seen the photocopy of conveyance deed dated 22.06.2012 this is in the name of Sh. Anand Prakash S/o Late. Sh. Lala Mood Chand & Smt. Kashual Devi Gupta W/o Sh. Anand Prakash jointly regarding property No. A-195 Defence Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -50- Colony, N.D. I compared the same with the original brought by me today. The Same is now exhibited as Ex PW4/DX (which Was earlier Marked as Mark-D)."
44. The cross-examination of PW5 conducted on 23.07.2018 before the court is as under:-
"The documents of which I have made photographs were pro- vided to me by the plaintiff Sh. Shyam Lal Gupta and from those documents I got photographs clicked. Q. How many documents were handed over to you by the plaintiff?
Ans. I do not exactly remember the number of the documents. I returned the documents after taking photographs. I returned the documents after taking photographs without re- taining any copy of the documents. I have taken the photo- graphs from photocopies. Original document were not pro- vided. I have not seen the original documents. I asked the plaintiff to provide me with the original documents and the plaintiff told me that the original documents are on the court record. I did not inspect the court record. Q. You have mentioned a certificate number in paragraph 2 of your affidavit from where did you obtain/note this certificate number?
Ans. From the photocopies. Stamp paper was a part of the sale deed from which I had taken the photograph and the Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -51- certificate number I have mentioned was on the document of the sale deed.
Q. Whether the signatures referred to as Q-1 and Q-2 in your report were taken from one document, from one page or from different documents or from different pages? Ans. As I remember, both the signatures were on the first page of the agreement.
Q. Whether it was disclosed to you by the plaintiff that the original of the agreement bearing signatures referred to in your report as Q-1 and Q-2, is also on the court record? (Question is disallowed as the question has been answered by the witness earlier that he was told by the plaintiff that the original documents are on the record. The witness is here de- posing only in respect of the report as an expert witness). It is incorrect to suggest that comparison from the photocopy cannot be done.
Q. I put it to you that being an expert professional you should have refused to give any report without seeing the original. (The question is disallowed as the question is not properly formulated and touches upon no aspect of the report but upon personal conduct having no relevancy even in respect of deposition as an expert).
It is incorrect to suggest that the formation of letters KA (in vernacular), O (the maatra in vernacular), SHA (in Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -52- vernacular), LA (in vernacular) are written differently in the disputed and comparative signatures.
Q. Are you having any certificate/diploma regarding to be an handwriting expert?
Ans. I have done one year certificate course in Forensic Sci- ence from University of Delhi in the year 1970, handwriting identification is covered under forensic science and is a part of the forensic science.
It is incorrect to suggest that I have made a false report."
EVIDENCE OF DEFENDANT NO.1 AND 2
45. The defendant no.2 and LRs of defendant no.1 in their evidence examined Jagdish Gupta (defendant no.1A) as DW1 and his evidence by way of affidavit Ex.DW1/X. De- fendant no.2 also examined herself as DW2 and her evidence by way of affidavit as Ex.DW2/Y. Defendant no.1B Sh. Bal- ram Gupta examined himself as DW3 and his evidence by way of affidavit as Ex.DW3/Z. Defendants relied upon the following documents:-
1. Copy of Will dated 26.04.2010 as Ex.DW1/1(OSR)
2. Copy of Sale Deed dated 08.07.1964 as Ex.DW1/2(OSR)
3. Mutation letter dated 02.06.1965 as Ex.DW1/3(OSR)
4. Copy of registered Power of Attorney 05.09.2005 as Ex.DW1/4(OSR)
5. Copy of Sale Deed 01.09.2009 as Ex.DW1/5(OSR) Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -53-
6. Copy of Mutation letter as Ex.DW1/6(OSR)
7. Copy of conveyance deed as Ex.DW1/7(OSR)
8. Copy of Notice dated 05.07.2012 as Mark A.
9. Copy of Postal receipt as Mark B
10.Copy of Reply of notice dated 12.07.2012 as Mark C
46. The cross-examination of DW1 conducted on 28.04.2018 before the Ld. Local Commissioner is as under:-
"It is correct that Sh. Madan Mohan Issar was the original al- lotter of A-195, Defence Colony, New Delhi as per record. Date of birth of defendant no.1 Sh. Anand Prakash Gupta was of Nov, 1937. I do not know the date of birth Sh. Puran Mal. I do not know if the date of birth of Sh. Shyam Lal Gupta is 19.03.1949. It is correct that my Grand Father Sh. Mool Chand Gupta was running a shop in defence colony market in the name of defence store. VOL. I have never seen him sitting on the shop. My date of birth is 05.11.1967. Q1.) You have mentioned above that you had never seen Sh. Mool Chand Gupta sitting in the Defence Store. Can you tell the month and year since you had not seen late Sh. Mool Chand Gupta in the defence store?
Ans.) After 2 or 3 years of my birth when I started to visit the shop I had never seen him sitting on the shop. Q2.) Is it correct that prior to the date when you started visit- ing the shop, late Sh. Mool Chand Gupta used to sit on the Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -54- shop?
Ans.) I cannot say.
Q 3.) Is it correct that 1964 late Sh. Mool Chand Gupta was running the defence store since 1964?
Ans.) I have no knowledge as I was born in 1967. Q 4.) I put it to you that in 1964 late Sh. Mool Chand Gupta was running the entire business and late Sh. Anand Prakash Gupta and Sh. Puran Mal used to only assist him? Ans.) As per my knowledge as told to me by my father the en- tire business was run by late Sh. Anand Prakash Gupta and Sh. Puran Mal and late Sh. Mool Chand Gupta used to sit in the park opposite the shop for about 2 hours and thereafter used to go home.
Q5.) I put it to you that the entire business was in the name of late Sh. Mool Chand Gupta and late Sh. Anand Prakash Gupta and Sh. Puran Mal only used to sit in the shop and assist him? Ans.)It is incorrect. As told to me by my father the business was in the name of defence store and late Sh. Anand Prakash Gupta and Sh. Puran mal were the signing authority. Q.6) Can you tell what was the construction existing in A-195 defence colony in 1964?
Ans.) I do not know.
Q7.) When did your parent got married?
Ans) On 27.05.1964.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -55- Q 8.) When did Sh. Puran Mal got married?
Ans.) I do not know.
Sh. Puran Mal is younger to my father and he must got mar- ried after the marriage of my father. It is incorrect to suggest that my father shifted to second floor of the property no. A-195, Defence Colony after his marriage. It is incorrect to suggest that when Sh. Puran Mal got married my father shifted to first floor of the said property. I do not know whether Sh. Shyam Lal Gupta got married in 1974. Q9.) After the marriage of the plaintiff he continued to stay on the ground floor of the property A-195, Defence Colony with late Sh. Mool Chand Gupta?
Ans.) It is correct. Vol. the entire family living jointly at ground floor as well.
It is wrong to suggest that only plaintiff used to stay at ground and not the entire family. I cannot tell what was the income of my father and Sh. Puran Mal in 1964, I do not know whether my father and Sh. Puran Mal were having any bank account in 1964. I do not know whether my father and Sh. Puran Mal used to file the income tax return or not in 1964. It is wrong to suggest that my father and Sh. Puran Mal were having no income to purchase the house A-195, Defence Colony. It is wrong to suggest that the said house was purchased by late Sh. Mool Chand Gupta in the name of my father and Sh.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -56- Puran Mal. I do not know whether Sh. Shyam Lal Gupta was minor in 1964 or not as I do not know his date of birth. It is wrong to suggest that late Sh. Mool Chand Gupta had pur- chased property A-195, Defence Colony for the benefit of the plaintiff, my father and Sh. Puran Mal. Vol. It was purchased by my father and Sh.Puran Mal.
Q 10.) I put it to you that since the plaintiff was a minor in 1964 his name could not been included in the sale deed of A-195, Defence Colony?
Ans.) I cannot say.
It is correct that I was born in property no. A-195, Defence Colony, New Delhi. When I got mature property no. A-195, Defence Colony, New Delhi was constructed till 2nd floor."
47. The cross-examination of DW1 conducted on 05.05.2018 before the Ld. Local Commissioner is as under:-
"Witness is shown document marked as mark PW-1/3 Q1.) I put it to you that document marked as mark PW-1/3 be- ing the family settlement dated 30.08.1985 was entered into between Puran Mal, Anand Prakash and Shyam Lal Gupta which was signed by Mool Chand Gupta as witness and also signed by Kaushal Devi, Rajesh Gupta and Smt. Darshan Devi. What do you want to say?
Ans.) I do not know whether such document was executed. Q2.) I put it to you that after august 1985 Shyam Lal Gupta Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -57- and his family shifted to the second floor and sh. Anand Prakash Gupta shifted to the ground floor with his family.? Ans.) It is incorrect we were residing on the ground floor even earlier since beginning.
Q3.) I put it to you that in 1985 when Shyam Lal Gupta shifted on the second floor was comprised of two bedroom, one drawing room, one kitchen and one bathroom. What do you want to say?
Ans.) Whatever was constructed at that time was constructed. Q4.) I put it to you that after shifting on the second floor Shyam Lal Gupta constructed two more bedrooms and one more toilet out of his own funds. What do you want to say? Ans.) I have no knowledge.
Q 5.) I put it to you that ever since 1985 Shyam Lal Gupta is paying the house tax for second floor of the property. What do you want to say?
Ans.) I have no knowledge.
Q.6) I put it to you that neither Anand Prakash Gupta nor you paid the house tax of the second floor. What do you want to say?
Ans.) Anand Praksh Gupta was paying the house tax of second floor too.
Q7.) Can you produce any house tax receipt? Ans.) Yes. I can produce.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -58- Q 8.) I put it to you that the house tax of second floor was ex- clusively paid by the plaintiff for which receipts in his name were issued by MCD. What do you want to say? Ans.) I can deposit the house tax of Saket Court. Anybody can deposit the house tax of any property on computer. Q9.) I put it to you that house tax of somebody else property cannot be deposited by a third party?
Counsel for the defendant raised an objection to the question. Ans.) I don't know the today's system but in those days one could deposit the house tax in self-assessment scheme. Q10.) is it correct that electricity meter foe Second Floor was also got installed in the name of Shyam Lal Gupta? Ans.) I do not know when it was installed but today it is in the name of Shyam Lal Gupta.
Q 11.) I put it to you that electricity meter was got installed by Shyam Lal Gupta after shifting on the second floor? Ans.) I do not know.
Q 12.) When did you come to know about the electricity meter?
Ans.) I cannot tell.
Q 13.) Did you object to the installation of electricity meter in the name of Shyam Lal Gupta?
Ans.) No. Q 14.) Did you object to deposit of house tax by Shyam Lal Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -59- Gupta?
Ans.) I did not know about the deposit.
Q15.) Did you object to deposit of house tax by Shyam Lal Gupta after the filing of the present suit? Ans.) No. Q 16.) I put it to you that water connection of second floor is also in the name of Shyam Lal Gupta. What do you want to say?
Ans.) May be.
Q 17.) Have you read the written statement filed by Anand Prakash Gupta in the present suit?
Ans.) Yes.
Witness is shown Para no. 7 of written statement filed by Anand Prakash Gupta.
Q 18.) Is it correct that Anand Prakash Gupta never demanded Rs. 4000/- from Shyam Lal Gupta? Ans.) I do not know.
Q 19.) I put it to you that no licence deed was executed between Anand Prakash Gupta, Puran Mal and Shyam Lal Gupta?
Ans.) I do not know.
Q 20.) In 1989 when Shyam Lal Gupta was asked to vacate the second floor and he refused to vacate was any written no- tice issued by Anand Prakash Gupta or Puran Mal to Shyam Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -60- Lal Gupta?
Ans.) No written notice was given.
Q 21.) Besides 1989 when Shyam Lal Gupta was asked to va- cate the second floor, either prior to that or after that he was ever asked to vacate the second floor?
Ans.) No. Q 22.) I put it to you that in 1989 Shyam Lal Gupta refused to vacate second floor since he was the exclusive owner of second floor?
Ans.) It is incorrect.
It is incorrect to suggest that the second floor was never given on licence. It is further incorrect to suggest that second floor came to the share of Shyam Lal Gupta by virtue of family set- tlement marked as mark PW-1/3. It is incorrect to suggest that Anand Prakash Gupta did not have right to seek possession of second floor in the year 1989 from Shyam Lal Gupta. It is in- correct to suggest that Shyam Lal Gupta rightly refused to hand over the possession in the year 1989 to Anand Prakash Gupta. It is incorrect to suggest that Shyam Lal Gupta is not liable to pay mesne profit of Rs. 1 lakh p.m. It is incorrect to suggest that Shyam Lal Gupta is not liable to hand over the second floor the defendant no.1 and 2. It is incorrect to suggest that I am deposing falsely."
48. The cross-examination of DW2 conducted on Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -61- 14.05.2018 before the Ld. Local Commissioner is as under:-
"I do not remember what was the income of Sh. Anand Prakash in 1964. Vol. he used to sit on the shop. It is incorrect that the defence store was started by Sh. Mool Chand Gupta. Vol. I do not know what was being done prior to my marriage but after my marriage two brothers Anand Prakash Gupta and Puran Mal used to sit on the store. I do not know when the de- fence store was started. It is incorrect to suggest that in 1964 Sh. Mool Chand Gupta was running the entire business and late Sh. Anand Prakash Gupta and Sh. Puran Mal only used to assist him. In 1964 when I was got married the construction of A-195, Defence Colony was two rooms, kitchen, latrine and bathroom. Sh. Puran Mal was got married after two years of my marriage. First floor was constructed after around two years of my marriage. Vol. The entire construction was made at that time. I do not know whether the construction on the second floor comprised of two bedrooms, one drawing cum dining room, one kitchen and one bathroom. It is incorrect to suggest that after the construction on first and second floor I along with my husband shifted on the second floor. I do not remember whether Sh. Shyam Lal Gupta got married in 1974. It is correct that after marriage sh. Shyam Lal Gupta along with his wife stayed on the ground floor. Sh. Puran Mal after marriage stayed on the ground floor. On the first floor wife of Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -62- S.K. Gupta and his wife used to stay at that time. From 1966 onwards Sh. Shyam Lal Gupta was having his office at sec- ond floor and thereafter he started to stay there. It is incorrect to suggest that from 1966 onwards Sh. Shyam Lal Gupta was having his office at second floor and thereafter he started to stay there. Sh. Ananad Prakash Gupta must be having bank account in 1964. Sh. Anand Prakash Gupta used to file In- come tax return in 1964. It is incorrect to suggest that late sh. Anand prakash gupta had no income of his own in1964. It is incorrect to suggest that late Sh. Anand Prakash Gupta was not filing any income tax return in 1964.
Witness is shown document marked as mark PW-1/3 and her signature at point A. Objected to by counsel for defendant no. 1 and 2 as it is a photocopy.
Q1.) The witness is asked whether the writing at point 'A' is her signature ?
Ans.) She denied it to be her signature.
Q2.) I put it to you that document marked as mark PW-1/3 be- ing the family settlement dated 30.08.1985 was entered into between Puran Mal, Anand Prakash and Shyam Lal Gupta which was signed by Mool Chand Gupta as witness and also signed by Kaushal Devi, Rajesh Gupta and Smt. Darshan Devi. What do you want to say?
Ans.) I did not signed any such document.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -63- Q 3.) I put it to you that after August 1985 Shyam Lal Gupta and his family shifted to the second floor and sh. Anand Prakash Gupta shifted to the ground floor with his family.? Ans.) It is incorrect we were residing on the ground floor even earlier since beginning.
Q 4.) I put it to you that in 1985 when Shyam Lal Gupta shifted on the second floor was comprised of two bedroom, one drawing room, one kitchen and one bathroom. What do you want to say?
Ans.) Whatever was constructed at that time was constructed. Q5.) I put it to you that after shifting on the second floor Shyam Lal Gupta constructed two more bedrooms and one more toilet out of his own funds. What do you want to say? Ans.) I have no knowledge.
Q6.) I put it to you that ever since 1985 Shyam Lal Gupta is paying the house tax for second floor of the property. What do you want to say?
Ans.) I have no knowledge.
Q7.) I put it to you that neither Anand Prakash Gupta nor you paid the house tax of the second floor. What do you want to say?
Ans.) Anand Praksh Gupta was paying the house tax of second floor too.
Q 8.) Can you produce any house tax receipt?
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -64- Ans.) Yes. I can produce.
Q 9.) I put it to you that the house tax of second floor was ex- clusively paid by the plaintiff for which receipts in his name were issued by MCD. What do you want to say? Ans.) I do not know.
Q 10.) Is it correct that electricity meter for second floor was also got installed in the name of Shyam Lal Gupta? Ans.) I do not know when it was installed but today it is in the name of Shyam Lal Gupta.
Q 11.) I put it to you that electricity meter was got installed by Shyam Lal Gupta after shifting on the second floor? Ans.) I do not know.
Q 12.) When did you come to know about the electricity meter?
Ans.) I cannot tell.
Q13.) Did you object to the installation of electricity meter in the name of Shyam Lal Gupta?
Ans.) No. Q 14.) Did you object to deposit of house tax by Shyam Lal Gupta?
Ans.) I did not know about the deposit.
Q 15.) Did you object to deposit of house tax by Shyam Lal Gupta after the filing of the present suit? Ans.) No. Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -65- Q 16.) I put it to you that water connection of second floor is also in the name of Shyam Lal Gupta. What do you want to say?
Ans.) May be.
Witness is shown Para no. 7 of written statement filed by her. Q 17.) Is it correct that Anand Prakash Gupta never demanded Rs. 4000/- from Shyam Lal Gupta? Ans.) I do not know.
Q 18.) I put it to you that no licence deed was executed between Anand Prakash Gupta, Puran Mal and Shyam Lal Gupta?
Ans.) I do not know.
Q 19.) In 1989 when Shyam Lal Gupta was asked to vacate the second floor and he refused to vacate was any written no- tice issued by Anand Prakash Gupta or Puran Mal to Shyam Lal Gupta?
Ans.) No written notice was given.
20) Besides 1989 when Shyam Lal Gupta was asked to vacate the second floor, either prior to that or after that he was ever asked to vacate the second floor?
Ans.) No. Q21.) I put it to you that in 1989 Shyam Lal Gupta refused to vacate second floor since he was the exclusive owner of second floor?
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -66- Ans.) It is incorrect.
It is incorrect to suggest that the second floor was never given on licence. It is further incorrect to suggest that second floor came to the share of Shyam Lal Gupta by virtue of family set- tlement marked as mark PW-1/3. It is incorrect to suggest that Anand Prakash Gupta did not have right to seek possession of second floor in the year 1989 from Shyam Lal Gupta. It is in- correct to suggest that Shyam Lal Gupta rightly refused to hand over the possession in the year 1989 to Anand Prakash Gupta. It is incorrect to suggest that Shyam Lal Gupta is not liable to pay mesne profit of Rs. 1 lakh p.m. It is incorrect to suggest that Shyam Lal Gupta is not liable to hand over the second floor the defendant no.1 and 2. It is incorrect to suggest that Sh. Puran mal did not have the right to sell 50% share in property no. A-195, Defence Colony. It is incorrect to suggest that Sh. Puran Mal had a right to sell only 1/3rd share in the said property. It is incorrect to suggest that I am deposing falsely."
49. The cross-examination of DW3 conducted on 14.05.2018 before the Ld. Local Commissioner is as under:-
"Witness is shown document marked as mark PW-1/3. Ob- jected to counsel for defendant no. 1 and 2 as it is a photocopy.
Q1.) I put it to you that document marked as mark PW-1/3 be-
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -67- ing the family settlement dated 30.08.1985 was entered into between Puran Mal, Anand Prakash and Shyam Lal Gupta which was signed by Mool Chand Gupta as witness and also signed by Kaushal Devi, Rajesh Gupta and Smt. Darshan Devi. What do you want to say?
Ans.) I do not know whether such document was executed. Q2.) I put it to you that after august 1985 shyam lal gupta and his family shifted to the second floor and sh. Anand Prakash Gupta shifted to the ground floor with his family.? Ans.) It is incorrect we were residing on the ground floor even earlier since beginning.
Q 3.) I put it to you that in 1985 when Shyam Lal Gupta shifted on the second floor was comprised of two bedroom, one drawing room, one kitchen and one bathroom. What do you want to say?
Ans. Whatever was constructed at that time was constructed. Q 4.) I put it to you that after shifting on the second floor Shyam Lal Gupta constructed two more bedrooms and one more toilet out of his own funds. What do you want to say? Ans.) I have no knowledge.
Q5.) I put it to you that ever since 1985 Shyam Lal Gupta is paying the house tax for second floor of the property. What do you want to say?
Ans.) I have no knowledge.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -68- Q6.) I put it to you that neither Anand Prakash Gupta nor you paid the house tax of the second floor. What do you want to say?
Ans.) Anand Praksh Gupta was paying the house tax of second floor too.
Q 7.) Can you produce any house tax receipt? Ans.) Yes. I can produce.
Q 8.) I put it to you that the house tax of second floor was ex- clusively paid by the plaintiff for which receipts in his name were issued by MCD. What do you want to say? Ans.) I do not know.
Q 9.) Is it correct that electricity meter for second floor was also got installed in the name of shyam lal gupta in 1985? Ans.) I do not know when it was installed but today it is in the name of Shyam Lal Gupta.
Q 10.) I put it to you that electricity meter was got installed by Shyam Lal Gupta after shifting on the second floor? Ans.) I do not know.
Q 11.) When did you come to know about the electricity meter?
Ans.) I cannot tell.
Q 12.) Did you object to the installation of electricity meter in the name of Shyam Lal Gupta?
Ans.) No. Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -69- Q 13.) Did you object to deposit of house tax by Shyam Lal Gupta?
Ans.) I did not know about the deposit.
Q 14.) Did you object to deposit of house tax by Shyam Lal Gupta after the filing of the present suit? Ans.) No. Q15.) I put it to you that water connection of second floor is also in the name of Shyam Lal Gupta. What do you want to say?
Ans.) May be.
Q 16.) Have you read the written statement filed by Anand Prakash Gupta in the present suit?
Ans.) No. Q 17.)Is it correct that Anand Prakash Gupta never demanded Rs. 4000/- from Shyam Lal Gupta?
Ans.) I do not know.
Q 18.) I put it to you that no licence deed was executed between Anand Prakash Gupta, Puran Mal and Shyam Lal Gupta?
Ans.) I do not know.
Q 19.) In 1989 when Shyam Lal Gupta was asked to vacate the second floor and he refused to vacate was any written no- tice issued by Anand Prakash Gupta or Puran Mal to Shyam Lal Gupta?
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -70- Ans.) do not know.
Q 20.) Besides 1989 when Shyam Lal Gupta was asked to va- cate the second floor, either prior to that or after that he was ever asked to vacate the second floor?
Ans.) I do not know.
Q 21.) I put it to you that in 1989 Shyam Lal Gupta refused to vacate second floor since he was the exclusive owner of second floor?
Ans.) It is incorrect.
It is incorrect to suggest that the second floor was never given on licence. It is further incorrect to suggest that second floor came to the share of Shyam Lal Gupta by virtue of family set- tlement marked as mark PW-1/3. It is incorrect to suggest that Anand Prakash Gupta did not have right to seek possession of second floor in the year 1989 from Shyam Lal Gupta. It is in- correct to suggest that Shyam Lal Gupta rightly refused to hand over the possession in the year 1989 to Anand Prakash Gupta. It is incorrect to suggest that Shyam Lal Gupta is not liable to pay mesne profit of Rs. 1 lakh p.m. It is incorrect to suggest that Shyam Lal Gupta is not liable to hand over the second floor the defendant no.1 and 2. It is incorrect to sug- gest that Sh. Puran mal did not have the right to sell 50% share in property no. A-195, Defence Colony. It is incorrect to suggest that Sh. Puran Mal had a right to sell only 1/3rd share Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -71- in the said property. It is incorrect to suggest that I am deposing falsely."
ARGUMENTS OF LD. COUNSEL FOR THE PLAINTIFF.
50. Ld. Counsel for plaintiff states that in the year 1964 late Sh. Mool Chand Gupta and his sons were living together in the same house as a joint Hindu family and late Sh. Mool Chand Gupta was the only member in the family who was working and running a Defence Store. Ld. Counsel for the plaintiff further states that the property bearing no. A-195, Defence Colony, New Delhi was purchased by late Sh. Mool Chand Gupta on 08.07.1964 in the name of defendant no.1 and 3 and the entire sale consideration of Rs.25,000/- was paid by late Sh. Mool Chand Gupta and the same was also re- flected in the documents. Ld. Counsel for the plaintiff further states that the plaintiff was minor on 08.07.1964, therefore, his name was not added in the sale deed. Ld. Counsel for the plaintiff further states that the defendant no.1 and 2 failed to establish that the property A-195, Defence Colony was pur- chased by their personal income. Defendant no.1 and 2 have failed to bring anything on record to show that at the time of purchase of said property on 08.07.1964 defendant no.1 and 3 had any source of income. Ld. Counsel for the plaintiff fur- ther states that at the time of purchase of the said property late Sh. Mool Chand Gupta was HUF and the plaintiff and Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -72- defendant no.1 and 3 were members of joint family.
51. Ld. Counsel for the plaintiff further states that in the year 1985 the plaintiff was residing with late Sh. Mool Chand Gupta at the ground floor, defendant no.1 was residing with his family at 2nd floor and defendant no.3 was residing at the first floor. Late Sh. Mool Chand Gupta during his lifetime in the year 1985 expressed his willingness to divide the property A-195, Defence Colony, New Delhi among the plaintiff and defendant no.1 and 3 and therefore, vide family settlement dated 30.8.1985 Mark PW1/3 the said property was divided among the plaintiff, defendant no.1 and defendant no.3. The family settlement dated 30.08.1985 was signed by plaintiff, defendant no.1, 2, 3 and also by the father of the parties, Sh. Mool Chand Gupta. Defendant no.4 wife of S.K Gupta, the eldest brother of plaintiff, defendant no.1 and 3, also signed the family settlement dated 30.08.1985.
52. Ld. Counsel for the plaintiff further states that as per the family settlement dated 30.08.1985 Mark PW1/3 the ground floor came to share of the defendant no.1, the first floor to the share of defendant no.3 and the second floor with terrace rights came to the share of plaintiff. All the parties to the family settlement dated 30.08.1985 also acted upon the said family settlement and the defendant no.1 came to ground floor, defendant no.3 continued to stay at 1st floor and plaintiff Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -73- shifted to 2nd floor. Later on, plaintiff renovated and con- structed the 2nd floor with his own funds. Ld. Counsel for the plaintiff further states that the defendant no.1 and 2 have not denied their signatures on the family settlement in their writ- ten statement but denined in evidence, therefore, the plaintiff examined PW5 handwriting expert to prove the signatures of defendant on the family settlement dated 30.08.1985 and the signatures of defendant 2 were duly proved by PW5.
53. Ld. Counsel for the plaintiff further states that except defendant no.1 and 2 no other family members disputed the execution of family settlement dated 30.08.1985. The defen- dant no.4 has supported the case of the plaintiff by admitting the admission of family settlement. The defendant no.3 has also not opposed the averments made in the plaint as he did not file the written statement. However, an affidavit dated 27.11.2017 was filed on behalf of defendant no.3 therein he admitted the execution of family settlement dated 30.08.1985. Ld. Counsel for the plaintiff further states that from the testi- mony of PW1, PW2, PW3 and PW5 it is proved that the fam- ily settlement dated 30.08.1985 was executed and the said property was divided among plaintiff, defendant no.1 and 3.
54. Ld. Counsel for plaintiff further states that the contro-
versy started in the month of October, 2009 when the defen- dant no.6 Sanjeev Anand had vacated the first floor and Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -74- defendant no.1 came to occupy the said first floor of the prop- erty. Ld. Counsel for the plaintiff further states that the first floor of the said property came to the share of defendant no.3 as per family settlement dated 30.08.1985, therefore, the plaintiff inquired from defendant no.3 how did the defendant no.6 handed over the first floor to defendant no.1 in the month of October, 2009 but the defendant no.3 did not provide any information to the plaintiff.
55. Ld. Counsel for the plaintiff further states that the plaintiff received a notice dated 07.08.2012 along with copy of plaint and other documents and then he came to know that a fraud was committed by the defendants upon him. The de- fendant no.3 in collusion with defendant no.5 and 6, had exe- cuted the alleged agreement to sale dated 05.09.2005 in favour of defendant no.6 with respect to the 50 % share of the said property. The plaintiff for the first time also came to know on receiving the copy of plaint and documents of the suit filed by Anand Prakash Gupta that the defendant no.6 had executed an illegal sale deed dated 31.08.2009, through de- fendant no.5 with respect to the 50 % share in the said prop- erty in favour of defendant no.2. The plaintiff also came to know at that time that the defendant no.3 had illegally exe- cuted a GPA dated 05.09.2005 in favour of defendant no.5 in respect of 50 % share in the said property. Ld. Counsel for the Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -75- plaintiff further states that the plaintiff filed the suit on 03.10.2012 after coming to know about the alleged docu- ments in the month of August, 2012, therefore, the suit of plaintiff Shyam Lal Gupta was filed within limitation.
56. Ld. Counsel for the plaintiff further states that the de-
fendant no.1 and 2 have stated in their plaint titled as "Anand Prakash Gupta vs. Shyam Lal Gupta" that when the plaintiff Shyam Lal Gupta was allowed to occupy the 2 nd floor of the said property on the asking of their father it was agreed be- tween the parties that the plaintiff would vacate the 2 nd floor of the said property on acquiring some other property for his residence. Ld. Counsel for the plaintiff further states that ac- cording to the defendant no.1 and 2, the plaintiff acquired a DDA Flat in the year 1989 but despite that the plaintiff failed to vacate the second floor of the said property even when de- manded by the defendant no.1 and 2. Ld. Counsel for the plaintiff further states that though the plaintiff is not claiming adverse possession, however, as the plaintiff did not vacate the 2nd floor of the said property on the demand of the defen- dant no.1 and 3 in the year 1989 when the plaintiff acquired the possession of DDA flat therefore, the period of limitation seeking possession of the 2nd floor of the property in question started in the year 1989 but the suit was filed in the year 2012 i.e. after about 23 years and therefore, the suit of the Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -76- defendant no.1 and 2 is barred by limitation. Ld. Counsel for the plaintiff further states that Article 65 of Schedule 1 of Limitation Act provides the period of 12 years as limitation to seek possession of an immovable property but the suit of the defendant no.1 and 2 is not filed within the period of 12 years from the year 1989 when the alleged cause of action arose, therefore, the suit of the defendant no.1 and 2 is barred by limitation.
57. Ld. Counsel for the plaintiff further states that the bur-
den to prove this issue was on the defendant no.1 and 2, how- ever, they failed to lead any evidence to discharge the burden. Ld. Counsel for the plaintiff further states that during the trial it has come on record that at the time when the said property was purchased, the parties were living jointly with their father late Sh. Mool Chand Gupta, being head of the family. Ld. Counsel for the plaintiff further states that it is settled princi- ple of law that every Hindu family with father and son is pre- sumed to be a joint family and same continues to be a joint unless and until partition takes place in accordance with the law. Ld. Counsel for the plaintiff further states that the suit filed by plaintiff is not hit by Section 4 of Benami Transac- tions Act, 1988. Ld. Counsel for the plaintiff relied upon following rulings:-
I. Mst. Rukhmabai Vs. Lal Laxminarayan & Ors." AIR Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -77- 1960 SC 335.
II. Surjit Lal Chhabda Vs. The Commissioner of Income Tax, Bombay (1976) 3 SCC 142.
III. Kale & ors. Vs. Deputy Director of Consolidation & Ors. (1976) 3 SCC 119.
IV. Sh. Amarjeet Lal Suri Vs. Moti Sagar Suir (2005) DLT 295.
V. Aktiebolagetvolvo & Ors. Vs. R. Venkatachalam & Anr. ILR (2009) VI Del 233.
VI. Kanwaljit Kaur Bedi Vs. Paramjit Singh Sawhney & Ors. 2019 SCC OnLine P & H 7109.
VII. Gian Chand And Brothers & Anr. Vs. Rattan Lal @ Rattan Singh (2013) 2 Supreme court Cases 606. VIII. R.V.E. Venkatachala Gounder vs. Arulmigu Viswe-
saraswami & V.P Temple & Anr. (2003) 8 Supreme Court Cases 752.
IX. Kanwaljit Kaur Bedi vs. Paramjit Singh Sawhney & Ors. 2019 SCC OnLine P & H 7109.
X. Shir Prem Chandra Jain (Deceased) vs. Shri Sri Ram (Deceased) & Ors. in CM(M) 1764-66/2005 passed by Hon'ble High Court of Delhi; decided on 12.10.2009. XI. Laxmi Narayan Soni Vs. Sudha Gupta & Ors. 250 (2018) DLT 560 :: 2018 SCC OnLone Del 8679.
XII. Ravinder Kaur Grewal & Ors. Manjit Kaur & Ors.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -78- (2019) 8 SCC 729.
XIII. Amrendra Pratap Singh Vs. Tej Bahadur Prajapati & Ors. (2004) 10 Supreme Court Cases 65.
XIV. Vijay Bhawar & Ors Vs. Ajaib Singh 2014 SCC OnLine P&H 23385.
XV. Resham Lal @ Badri Prasad & Anr. vs. Gosai Ram & Ors. 2007 SCC OnLine Chh 50.
ARGUMENTS OF LD. COUNSEL FOR DEFENDANT NO.1 AND 2.
58. Ld. Counsel for defendant no.1 and 2 states that the plaintiff is claiming ownership over the second floor of the said property on the basis of alleged family settlement dated 30.08.1985, however, ownership right could not be trans- ferred by virtue of unregistered document of which only the photocopy was produced and the original has never been pro- duced before the court. Ld. Counsel for defendant no.1 and 2 further states that if there was any alleged family settlement 30.08.1985 the same would have definitely mentioned in the reply of the plaintiff dated 12.07.2012 to the notice dated 05.07.2012 of defendant no.1 to the plaintiff by which defen- dant no.1 asked the plaintiff to vacate the 2 nd floor of the said property within 15 days.
59. Ld. Counsel for defendant no.1 and 2 further states that alleged family settlement dated 30.08.1985 was not exhibited Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -79- and marked as Mark PW1/3, therefore, the same cannot be read in evidence. The alleged family settlement is running in four pages, first page is photostat of a stamp paper and it does not have any stamp or date of the vender. The first page also bears the signature of six persons whereas other three pages bear the signature of only three persons and does not have any explanation as to why the signature of Rajesh Kumar Gupta, Kaushal Kumari Gupta (defendant no.2) and Darshan Devi are only on first page despite the fact that they were not party to the said family settlement. Ld. Counsel for defendant no.1 and 2 further states that the alleged family settlement dated 30.08.1985 is a forged and fabricated document.
60. Ld. Counsel for defendant no.1 and 2 further states that plaintiff in his plaint stated that the original of family settle- ment was with defendant no.3 but in his cross-examination he stated the original was in possession of defendant no.1. Ld. Counsel for defendant no.1 and 2 further states that the plain- tiff produced a photocopy of notice dated 21.09.2011 marked as Mark PW1/23 which shows it has been sent by S.P Mehta and Co. the advocate and legal consultant to Mr. Puran Mal (defendant no.3) on behalf of Shyam Lal (plaintiff), however, plaintiff deposed in his cross-examination that S.P Mehta & Co. is a Chartered Accountant and it shows that plaintiff is ha- bitual in fabricating documents. Ld. Counsel for defendant Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -80- no.1 and 2 further states that the plaintiff also moved an appli- cation seeking direction to defendant no.1 to produce the orig- inal family settlement and the said application was dismissed by the Hon'ble High Court of Delhi vide order dated 07.08.2015. The plaintiff also moved an application seeking permission to lead secondary evidence of the photocopy of al- leged family settlement but the said application was also dis- posed by Hon'ble High Court of Delhi vide its order dated 12.08.2014 by referring the judgment passed by Hon'ble High Court of Delhi in Shri Prem Chandra Jain v. Shri Sri Ram in 2009 dated 12.10.2019.
61. Ld. Counsel for defendant no.1 and 2 further states that U/s 65 of the Evidence Act the secondary evidence can be lead only in the cases that have been referred in Clause from
(a) to (g), however, in the case in hand, the plaintiff failed to satisfy any of the clauses (a) to (g) of Section 65 of Evidence Act, therefore, the alleged family settlement cannot be considered as secondary evidence U/s 65 of Evidence Act.
62. Ld. Counsel for defendant no.1 and 2 further states that the plaintiff during the course of arguments tried to make up a story of Hindu Undivided Family (HUF), however, no such claim was made in the pleadings by the plaintiff that the prop- erty in question is an HUF property. Ld. Counsel for defen- dant no.1 and 2 further states that according to the plaintiff Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -81- himself the said property was purchased by late Sh. Mool Chand Gupta from his funds in the name of defendant no.1 and 3 so definitely, whosoever are residing in the property were either resident being owner or as of permissive posses- sor may be of late Sh. Mool Chand Gupta or of registered owner of the property so the plaintiff fails to discharge the onus put on him to prove issue no.1, therefore, he is liable to vacate the 2nd floor of the said property.
63. Ld. Counsel for the defendant no.1 and 2 further states that the plaintiff Shyam Lal Gupta was well aware about the execution of agreement to sell executed by defendant no.3 in favour of defendant no.6 Sanjeev Anand in the first quarter of 2008 when defendant no.6 had removed some wall of the first floor and at that time the plaintiff even supported defendant no.6 and it was Sh. Jagdish Gupta son of defendant no.1 and 2, who made complaint to the Police about the illegal removal of wall. Ld. Counsel for defendant no.1 and 2 further states that the plaintiff was also well aware of the transaction of de- fendant no.5 and 6 and about the transfer of property in the name of defendant no.2. Ld. Counsel for defendant no.1 and 2 further states that the plaintiff is seeking the declaration of documents which are of the year 2005 but he failed to file the suit till 2012, therefore, the suit filed by plaintiff is barred by limitation.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -82-
64. Ld. Counsel for defendant no.1 and 2 further states that defendant no.1 and 2 are the owners of the 2nd floor of the said property and the plaintiff never claimed adverse posses- sion in respect of 2nd floor of the said property, therefore, even though the defendant no.1 and 2 asked the plaintiff to vacate the 2nd floor in the year 1989 but the period of limitation would not start from 1989. Ld. Counsel for defendant no.1 and 2 further states that as the plaintiff has never claimed the adverse possession in respect of the 2nd floor of the suit prop- erty, therefore, the suit filed by the defendant no.1 and 2 of the 2nd floor of the suit property was filed within the period of limitation. Ld. Counsel for defendant no.1 and 2 further states that Article 65 of Schedule 1 of the Limitation Act is applica- ble only when a person claims ownership of the property on the basis of adverse possession.
65. Ld. Counsel for the defendant no.1 and 2 states that plaintiff Shyam Lal Gupta wanted to convince the court that the property in question was not purchased in his name as he was minor in the year 1964. Ld. Counsel for the defendant no.1 and 2 further states that Section 4 of Benami Transaction Act, 1988 provides that no suit or claim to enforce any right in respect of any property as benami against the person in whose name the property is held or against any other person shall lie on behalf of persons claiming to be the real owner of Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -83- such property. Ld. Counsel for the defendant no.1 and 2 fur- ther states that plaintiff Shyam Lal is prohibited by Section 4 of Benami Transaction (Prohibition) Act from claiming any right in the said property as the same was purchased in the name of defendant no.1. Ld. Counsel for the defendant no.1 and 2 further states that the rulings relied upon by the Ld. Counsel for the plaintiff are not applicable as the said rulings were prior on the enforcement of Benami Transaction (Prohi- bition) Act, 1988. Ld. Counsel for defendant no.1 and 2 relied upon the following rulings:-
I. Ravinder Gaur Grewal & Ors vs. Manjit Kaur & Ors.
in Civil Appeal no.7764 of 2014 with Radhakrishna Reddy (D) through LRs vs. G. Ayyavoo & Ors. in Spe- cial Leave Petition (Civil) no.8332-8333 of 2014 passed by Hon'ble Supreme Court of India; decided on 07.08.2019.
II. Thakur Kishan Singh (Dead)Vs. Arvind Kumar 1994 (6) SCC 591.
III. Gaya Prashad Dikshit Vs. Nirmal Chander & Ors.
1984 (2) SCC 286.
IV. Government of Kerala & Ors. Vs. Joseph & Ors. 2023 INSC 693.
V. Kedar Nath Vs. Ram Chand (Dead) & Ors. AIR 1972 Punjab and Haryana 335.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -84- VI. PT Munichikkana Reddy Vs. Revamma & Ors. 2007 (6) SCC 59.
VII. Mahesh Chand Vs. Sumresh Chaturvedi in CM (Main) no.455/2014 passed by Hon'ble High Court of Delhi; decided on 08.09.2014.
66. Arguments heard. Entire record perused and considered.
67. The issue wise findings on the above said issues are as under:-
ISSUE NO.1 AND 6
1. Whether the plaintiff is co-owner of the second floor of property bearing No.A-195, Defence Colony, New Delhi by virtue of agreement dated 30.08.1985? OPP
6. Whether defendants No.1 & 2 are entitled to the decree of possession from the plaintiff? OPD1&2
68. The issue no.1 and 6 are interconnected, therefore, both are taken up simultaneously. The burden of issue no.1 is on the plaintiff and the burden of issue no.6 is on the defendant no.1 and 2.
69. After considering the rival contentions and arguments of Ld. Counsel for parties on issue no.1 and 6, the two ques- tions need to be considered and it will help to decide issue no.1 and 6:-
(i) Whether in the year 1964 late Sh. Mool Chand Gupta was Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -85- having a Joint Hindu Family / Hindu Undivided Family or whether defendant no.1 and 3 purchased the said property from their own personal sources?
(ii) Whether the property was divided as per family settlement dated 30.08.1985 during the life time of late Sh. Mool Chand Gupta and the parties acted upon on the said family settlement or the said family settlement is forged and fabricated?
70. The plaintiff as PW1 has reiterated his case by way of his evidence affidavit Ex.PW1/A. PW1 was cross-examined at length but nothing came on record to shake the testimony of PW1 that in the year 1964 when the property in question was purchased, the family of late Sh. Mool Chand Gupta was living as a joint family and Mool Chand Gupta was running a store in the name of Defence Store and that was the source of income of his family. From the documents i.e., payment re- ceipt at the time of purchase of the said property it is proved that Rs.25,000/- was given by Mool Chand Gupta. The testi- mony of PW2 and PW3 have also supported the testimony of PW1.
71. DW1, DW2 and DW3 though reiterated the case of de-
fendant no.1 and 2 in their evidence by way of affidavit, how- ever, there are contradictions in their cross-examination. DW1 admitted the suggestion in his cross-examination conducted on 28.04.2018 that his grandfather Sh. Mool Chand Gupta Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -86- was running a shop in the Defence Colony Market in the name of Defence Store. DW1 further admitted the suggestion that after the marriage of the plaintiff, he continued to stay on the ground floor of the property A-195, Defence Colony, New Delhi along with late Sh. Mool Chand Gupta. DW1 voluntar- ily deposed that the entire family was living jointly at the ground floor as well. The plaintiff got married in the year 1974 and DW1 deposed that at that time the entire family living jointly at the ground floor.
72. DW2 admitted the suggestion in his cross-examination conducted on 14.05.2018 that after marriage plaintiff along with his wife stayed on the ground floor. DW2 denied the suggestion that after August,1985 the plaintiff and his family shifted to second floor and defendant no.1 shifted to the ground floor with his family by stating that they were residing on the ground floor even earlier since beginning. Plaintiff was residing on the ground floor along with his father Mool Chand Gupta. Defendant no.1 along with his family was also living on the ground floor. Defendant no.3 also lived at the ground floor after his marriage. Thus, the testimony of DW1 and DW2 supported the case of the plaintiff that when the said property was purchased on 08.07.1964 the family of late Sh. Mool Chand Gupta was Joint Hindu Family.
73. Further, from the testimony of DW1, DW2 and DW3 it Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -87- is not proved that in the year 1964 at the time of purchase of said property defendant no.1 and 3 had separate personal source of income. There is no document on record that in the year 1964 defendant no.1 and 3 were working separately from their father late Sh. Mool Chand Gupta. On the one hand, there are evidence on record that payment was made by late Sh. Mool Chand Gupta to purchase the said property and at that time the family of late Sh. Mool Chand Gupta was living together as joint family and on the other hand, there is no evi- dence that defendant no.1 and 3 were working and earning separately and were financially able to purchase the said property. Thus, it is proved that the family of late Sh. Mool Chand Gupta in the year 1964 on the date of purchase of said property was Hindu Undivided Family. Reliance can be placed upon: Mst. Rukhmabai Vs. Lala Laxminarayan & Ors AIR 1960 SC 335 and Surjit Lal Chhabda vs. The Commissioner of Income Tax, Bombay (1976) 3 SCC 142.
74. The contention of Ld. Counsel for defendant no.1 and 2 that the plaintiff has not pleaded in the plaint about HUF therefore, he cannot be allowed to take the plea of HUF has no substance. It is the case of the plaintiff since beginning that though, the property was purchased in the name of defendant no.1 and 3 but the payment was made by their father and at that time their family was joint and their father was running a Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -88- Defence Store and that was the source of income of the fam- ily. The plaintiff has not used the word 'HUF', however, from the reading of the plaint it is clear that the case of the plaintiff from the very beginning is that the family of Mool Chand Gupta was Joint Family in the year 1964 and the said property was purchased from the family income of Mool Chand Gupta.
(ii) Whether the property was divided as per family settlement dated 30.08.1985 during the life time of late Sh. Mool Chand Gupta and the parties acted upon on the said family settlement or the said family settlement was forged and fabricated?
75. PW1 deposed that in the year 1985, late Sh. Mool Chand Gupta wished to divide all the assets created by him among his sons and accordingly a family settlement was ar- rived at among all the family members, in respect of all mov- able properties including cash and jewellery as well as vari- ous immovable properties. PW1 further deposed that a family settlement was also arrived at in respect of property bearing no.A-195, Defence Colony, New Delhi sometime in the month of August, 1985 which was agreed to be reduced in writing among defendant no.1 and 3 and him. PW1 further deposed that by virtue of family settlement dated 30.08.1985 Mark PW1/3 the ground floor of the said property came to the share of defendant no.1, first floor to the share of defendant no.3 and second floor with terrace rights to him and Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -89- accordingly he shifted to second floor and the defendant no.1 shifted to ground floor, defendant no.3 remained at first floor at he was already staying at first floor.
76. PW1 was cross-examined at length, however, nothing has come on record to shake his testimony. The question arises whether the plaintiff has proved family settlement Mark PW1/3. According to the plaintiff, the family settlement Mark PW1/3 bears the signature of defendant no.1, defendant no.2, defendant no.3, defendant no.4, signature of his father and also his signature. Defendant no.3 did not file the written statement even he did not appear before the court to contest the case, therefore, in this way he has not disputed family set- tlement Mark PW1/3. Defendant no.4 in her written statement has admitted the execution of family settlement dated 30.08.1985 (Mark PW1/3) and also admitted her signature on it. Only the defendant no.1 and 2 have challenged the family settlement Mark PW1/3 and disputed their signature on it. In order to prove the signature of defendant no.2 on the family settlement Mark PW1/3 the plaintiff examined PW5, Sh. B.N Srivastav. PW5 compared the admitted signature of defendant no.2 to her alleged signature on family settlement Mark PW1/3 and the according to his report Ex.PW5/1 the family settlement Mark PW1/3 bear the signature of defendant no.2. The report of PW5 remain unimpeachable during his cross-
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -90- examination. Hence from the testimony of PW1, PW2 and PW3 it is established that family settlement Mark PW1/3 was arrived at and the property bearing no.A-195, Defence Colony, New Delhi was divided amongst plaintiff, defendant no.1 and defendant no.3. The testimony of PW5 proves the signature of defendant no.2 on the family settlement Mark PW1/3.
77. Further, DW1 deposed in his cross-examination con-
ducted on 05.05.2018 that he did not know whether family settlement dated 30.08.1985 Mark PW1/3 was executed. Sim- ilarly, DW3 deposed in his cross-examination conducted on 14.05.2018 that he did not know whether family settlement dated 30.08.1985 Mark PW1/3 was executed. DW1 and DW3 have not denied the execution of family settlement Mark PW1/3 but stated that they did not know whether it was exe- cuted or not. Thus, the plaintiff has established the execution of family settlement Mark PW1/3 and the now the onus is on the defendant no.1 and 2 to prove that family settlement Mark PW1/3 is a forged and fabricated document.
78. Except the mere allegations defendant no.1 and 2 have not produced any document to establish that Mark PW1/3 is a forged and fabricated document. Ld. Counsel for defendant no.1 and 2 stated that Mark PW1/3 is not only a photocopy but an unregistered document and therefore, the ownership Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -91- right cannot be transferred by virtue of unregistered docu- ment. Ld. Counsel for the defendant no.1 and 2 relied upon Sita Ram Bhama v. Ramvatar Bhama (supra). The Hon'ble Supreme Court of India held in para 10 and 13 as under:-
"10. The only question which needs to be considered in the present case as to whether docu- ment dated 09.09.1994 could have been accepted by the trial court in evidence or trial court has rightly held the said document inadmissi- ble. The plaintiff claimed the document dated 09.09.1994 as memorandum of family settlement. Plaintiff's case is that earlier partition took place in the life time of the father of the parties on 25.10.1992 which was recorded as memorandum of family settlement on 09.09.1994. There are more than one reasons due to which we are of the view that the docu-
ment dated 09.09.1994 was not mere memoran- dum of family settlement rather a family settlement itself. Firstly, on 25.10.1992, the father of the par- ties was himself owner of both, the residence and shop being selfacquired properties of Devi Dutt Verma. The High Court has rightly held that the said documents cannot be said to be a Will, so that father could have made Will in favour of his t wo sons, plaintiff and defendant. Neither the plain- tiff nor defendant had any share in the property on th e day when it is said to have been parti-
tioned by Devi Dutt Verma. Devi Dutt Verma died on 10.09.1993. After his death plaintiff, defendant and their mother as well as sisters become the legal heirs under Hindu Succes- sion Act, 1955 inheriting the property being a class I heir. The document dated 09.09.1994 di- vided the entire property between plaintiff and de- fendant which document is also claimed to be signed by their mother as well as the sisters. In any view of the matter, there is relinquish- ment of the rights of other heirs of the properties, Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -92- hence, courts below are right in their conclu- sion that there being relinquishment, the document d ated 09.09.1994 was compulsorily registrable under Section 17 of the Registration Act.
13. There is only one aspect of the matter which needs consideration, i.e., whether the document dated 09.09.1994 which was inad- missible in evidence could have been used for any collateral purpose. In a suit for par- tition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint proper- ties by metes and bounds. Further, an unstamped in- strument is not admissible in evidence even for col- lateral purpose, until the same is impounded. A twoJudge Bench judgment of this Court in Yel- lapu Uma Maheswari and another vs. Buddha Jagad- heeswararao and others, (2015) 16 SCC 787, is ap- propriate. In the above case also admissibility of doc uments Ext. B21 dated 05.06.1975 a deed of memo- randum and Ext. B22 dated 04.06.1975 being an agreement between one late Mahalakshamma, respondent No.1plaintiff and appellant No.1- defendant came for consideration. Objection was taken regarding admissibility which was upheld both by the High Court and trial court. Matter was taken up by this Court. In the above case , this Court held that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents. This Court after considering both the documents, B21 and B22 held t hat they require registration. In paragraph 15 following was h eld:
"15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -93- of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who see ks to introduce the document in question. A thorough reading of both Exts. B21 and B22 makes it very clear that there is relinquish- ment of right in respect of immovable prop- erty through a document which is compulso- rily registrable document and if the same is not reg- istered, it becomes an inadmissible document as envisaged under Section 49 of the Regis- tration Act. Hence, Exts. B21 and B22 are the documents which squarely fall within the am- bit of Section17(1)(b) of the Registration Act and he nce are compulsorily registrable docu- ments and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opin- ion that Exts. B21 and B22 are not admissi- ble in evidence for the purpose of proving primary purpose of partition."
79. From a bare reading of para 10 of the Sita Ram Bhama Vs. Ramvatar Bhama (supra), it is clear that the registration of relinquishment deed is compulsory U/s 17 of Registration Act. However, in the case in hand there is no relinquishment of share by any of the parties to the family settlement Mark PW1/3, therefore, family settlement Mark PW1/3 does not re- quire registration. Further, the suit of the plaintiff is not for partition of the said property, therefore, there is no bar to take in evidence an unstamped / unregistered family settlement.
80. The Hon'ble Madhya Pradesh High Court in Abhay Jain & Ors vs. State of M.P & Anr. (supra) has held that in para no.28 and 29 as under:-
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -94- "28.It is not in dispute that in the present case both the experts have taken photographs of disputed sig-
natures/thumb impression from the photocopy of the Will. Photocopy of document itself is neither pri- mary nor secondary evidence. It is not advisable for experts to take photograph of photocopies and base their opinion on such photocopies. Expert should al- ways base his opinion on original documents. When an expert forms his opinion on the basis of photo- copies, I feel that the expert has committed mistake and such report cannot be relied upon in absence of any corroborative evidence, which is not available at all in this case.
29.The expert should form opinion on the basis of study of original document. The reason being that the pressure points are analyzed by the hand writing expert for which original are required. In the ab- sence of original documents, the analysis of a ques- tioned document is limited to the features that sur- vive the copying process. This is like to identify a person behind a cloudy window; the basics are there, but details are missing. What we call the "three-di- mensionality" of the original document is lost. Not to mention that if the copy is a copy of a copy, the details become increasingly difficult to verify."
81. In Abhay Jain (supra) the Hon'ble High Court has hold that expert opinion on the basis of photocopy cannot be relied upon in the absence of corroborative evidence. In the case in hand, the expert opinion i.e. the report of PW1 (handwriting expert) is corroborated by testimony of PW1, PW2, PW3. Further, defendant no.4 has not opposed the execution of fam- ily settlement Mark PW1/3. Hence, the ruling Abhay (supra) is not to much help to the defendant no.1 and 2.
82. The Hon'ble High Court of Delhi in AKTIEBOLAGETVOLVO AND ORS. VS. R. Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -95- VENKATACHALAM & ORS. (supra) has held in para 10 as under:-
"10. Yet another reason which prevailed on me for even before considering the provisions of law find the aforesaid to be more reasonable, was the ad- vancement in science and technology which today allows the photocopy of the original to be as good/ clear as the original, if not clearer. A number of times, it is difficult to distinguish between the origi- nal and the photocopy. Gone are the times when copies of the original were made manually either in hand or in type with inherent possibility of differ- ences between the two. In those times, seeing the copy could not be the same as seeing the original. One could not have the impact of seeing the original by seeing such a copy. However, the process of pho- tocopying has changed all that. The ocular inspec- tion of a photocopy of a document is as good as of the original. The laws which were drafted in those times have to be interpreted in consonance with the present times and technology."
83. The Hon'ble High Court of Delhi in AKTIEBOLAGETVOLVO AND ORS. VS. R. VENKATACHALAM & ORS. (supra) has treated the photocopy of the document as equal to its original.
84. The further contention of the Ld. Counsel for the defen-
dant no.1 and 2 that the plaintiff in his reply dated 12.07.2012 Mark PW1/29 to notice of defendant no.1 has not stated about the family settlement and if there was a family settlement then why the same was not mentioned in his reply dated 12.07.2012 to the notice of defendant no.1 dated 05.07.2012. This contention has also no much substance because the Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -96- plaintiff had written the letter bearing dated 05.08.2011 but the receiving date is 06.07.2011 to L&DO (defendant no.7) much prior to his reply dated 12.07.2012 to legal notice of de- fendant no.1 and in the said letter Ex.PW4/1 to the L&DO the plaintiff had stated about family settlement dated 30.08.1985 and the L&DO has also stated so in their written statement. During the course of arguments Ld. Counsel for the defendant no.1 and 2 stated that Ex.PW4/1 cannot be relied upon be- cause its bearing the date 05.08.2011, however, receiving date is 06.07.2011. Though the dates are different but as the origi- nal of said letter Ex.PW4/1 was brought by PW4 before the court and it was also referred to in its reply dated 26.08.2011 Ex.PW4/2 by L&DO to the plaintiff, therefore, it appears due to typographical / clerical mistake wrong date was typed / stamped.
85. It is important to mention here that the plaintiff filed an application seeking permission to lead secondary evidence of family settlement Mark PW1/3, however, the Hon'ble High Court of Delhi, when the matter was pending before the Hon'ble High Court of Delhi, vide its order dated 12.08.2014 had disposed of the application by referring the judgment / ruling "Shri Prem Chandra Jain v. Shri Sri Ram " date of de- cision 12.10.2009. The Hon'ble High Court of Delhi in Shri Prem Chandra Jain vs. Shri Sri Ram has held in para 5 as Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -97- under:-
"5. The court, on an application seeking permission to lead secondary evidence, even if setting out rea- sons as contained in either of the clauses of Section 65, cannot take a decision on the correctness of the reasons. The application thus serves no purpose ex- cept delaying the proceedings. It is however often found that the courts allow or disallow the applica- tions, without giving an opportunity to the parties for laying a foundation for reception or rejection of secondary evidence. Such procedure is impermissi- ble in law. Factual controversies cannot be adjudi- cated on applications. That is however not to be un- derstood as allowing a mini-trial on this aspect. The party seeking to prove document by secondary evi- dence is to lead evidence of the existence of circum- stances/situations in which secondary evidence is permissible, during leading its evidence, whether by way of examination of witnesses or cross examina- tion of opponents witnesses, in the suit/other pro- ceeding itself. It will be decided at the stage of dis- posal of suit only, whether case for leading sec- ondary evidence has been made out or not and if so, whether document stands proved by secondary evidence."
86. Thus, the crux of ruling Shri Prem Chandra Jain vs. Shri Sri Ram is that there is no need to take permission from the court to lead secondary evidence and the party, who, wants to prove a document by secondary evidence has to lead evidence of the existence of circumstances / situations in which secondary evidence is permissible as required U/s 65 of Indian Evidence Act. Section 65 of Indian Evidence Act reads as under:-
"65. Cases in which secondary evidence relating to documents may be given. Secondary evidence Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -98- may be given of the existence, condition, or con- tents of a document in the following cases: --
(a) when the original is shown or appears to be in the possession or power --
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence;
(g) when the originals consist of numerous ac- counts or other documents which cannot conve- niently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the docu- ment, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the gen- eral result of the documents by any person who has examined them, and who is skilled in the Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -99- examination of such documents."
87. The plaintiff in the plaint states that the original of fam-
ily settlement Mark PW1/3 was with the defendant no.3 and he even asked the defendant no.3 about the same but defen- dant no.3 did not tell him anything. As per family settlement Mark PW1/3 the said property was divided among plaintiff and defendant no.1 and 3. As only plaintiff, defendant no.1 and defendant no.3 have rights in the said property by virtue of family settlement Mark PW1/3, therefore, the original of the same should be with any of them. If the plaintiff would have the original of family settlement Mark PW1/3 he must have produced the same before the court but as he is not hav- ing the same therefore, he is unable to produce the original of same before the court. The defendant no.3 choose not to par- ticipate / contest the suit in hand whereas he had sold half of the said property to defendant no.6. The instant suit was basi- cally filed against defendant no.1 and 3 as defendant no.3 had sold 50 % share of the said property to defendant no.6, and according to defendant no.1 and 2 the defendant no.1 was having remaining 50 % share in the said property and defen- dant no.2 has purchased the 50 % share from defendant no.6. From this the plaintiff has succeeded to prove that the original of Mark PW1/3 was either with defendant no.3 or defendant no.1. In cases (a), (c) and (d) of Section 65 of Indian Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -100- Evidence Act any secondary evidence of the contents of the document is admissible. Hence, the plaintiff has satisfied the condition to lead secondary evidence of family settlement Mark PW1/3 under Clause (a) of Section 65 of Indian Evidence Act and its contents are also admissible.
88. The ruling H. Siddiqui (Dead) By LRs. vs. A. Rama-
lingam (supra) is not to any help to the defendant no.1 and 2. The Hon'ble Supreme Court of India has held that the sec- ondary evidence relating to the contents of a document is in- admissible, until the non-production of the original is ac- counted for, so as to bring it within one or other of the cases provided for in the Section 65 of Indian Evidence Act. The secondary evidence must be authenticated by foundational ev- idence that the alleged copy is in fact true copy of the origi- nal. In the case in hand the plaintiff has established that the original of family settlement is either with the defendant no.1 or defendant no.3 and thus, he has accounted for the non-pro- duction of the original family settlement Mark PW1/3.
89. The Hon'ble Supreme Court of India in J. Yashodha v.
K. Shobha Rani has held under para 7, 8 and 9 as under:-
"7. Secondary evidence, as a general rule is admissi- ble only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce sec- ondary evidence of its contents. Essentially, sec- ondary evidence is an evidence which may be given Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -101- in the absence of that better evidence which law re- quires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary ev- idence "means and Includes" and then follow the five kinds of secondary evidence.
8. The rule which is the most universal, namely that the best evidence the, nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evi- dence it is necessary for the party to prove existence and execution of the original document. Under Sec- tion 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances men- tioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-produc- tion of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulic- hand v. Madahavlal Dube and Anr. MANU/SC/ 0278/1975: [1976] 1SCR246, it was inter alla held as follows:
After hearing the learned Counsel for the par- ties, we are of the opinion that the order of the High Court in this respect calls for no interference. Ac- cording to clause (a) of Section 65 of Indian Evi- dence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -102- the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 spec- ify some other contingencies wherein secondary evi- dence relating to a document may be given, but we are not concerned with those clauses as it is the com- mon case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, pray- ing that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been writ- ten by him, the photostat copy might be got exam- ined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent No. 1. The appellant further falled to explain as to what were the circum- stances under which the Photostat copy was pre- pared and who was in possession of the original doc- ument at the time its photograph was taken. Respon- dent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspi- cion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclu- sion that no foundation had been laid by the appel- lant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the order of the High Court as might justify interference by this court.
9. The admitted facts in the present case are that the original was with one P. documents can be admitted as secondary evidence. In the instant case clause (a) of Srinibas Rao. Only when conditions of Section Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -103- prescribed in Section 65 are satisfied, Section 65 has not been satisfied. Therefore, the High Court's order does not suffer from any infirmity to warrant interference."
90. In the case in hand, as discussed above the plaintiff had succeeded to establish that the original of family settlement Mark PW1/3 was in possession of defendant no.1 or defen- dant no.3 and therefore, he was unable to produce the original of the same before the court. The plaintiff has succeeded to satisfy the condition as prescribed under Clause (a) of Section 65 of Indian Evidence Act.
91. The further contention of Ld. Counsel for the defendant no.1 and 2 that the plaintiff in the plaint stated that the origi- nal family settlement was with the defendant no.3 but in his cross-examination he stated that the same was in possession of defendant no.1 and from these contradictory statements it is established that no family settlement dated 30.08.1985 was ever executed. This contention has also no much substance because it is the case of the plaintiff that he is not having orig- inal family settlement and same was with the defendant no.1 or 3.
92. For the sake of arguments even if it is assumed that the plaintiff failed to prove the family settlement Mark PW1/3 but still the plaintiff has right, title and interest in the second floor of the said property because as discussed above the said Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -104- property was purchased by late Sh. Mool Chand Gupta and at that time the family of late Sh. Mool Chand Gupta was an HUF, therefore, the plaintiff being the son of late Sh. Mool Chand Gupta has share in the said property and according to defendant no.1 and 2 the said property was not divided during the life time of late Sh. Mool Chand Gupta.
93. Further, the plaintiff has proved that he has been in pos-
session of the second floor of the said property since 1985. He had renovated and constructed the second floor of the said property. He has been paying the house tax of the second floor since long. The electricity and water meters are in the name of plaintiff in respect of second floor of the said prop- erty. Though, it is settled law that a person cannot become owner of the property if he pays the house tax or the water and electricity meter stand in his name. However, if the de- fendant no.1 and 2 were the owners of the second floor of the said property then why did they not deposit the house tax and further why did they not raise objection to stop the plaintiff to file the house tax. Similarly, why they did not take action against the plaintiff for installing water and electricity meter in his name without getting no objection certificate from them. The first time defendant no.1 and 2 claimed the owner- ship over the second floor of the said property by sending the legal notice dated 05.07.2012. The question arises why did Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -105- the defendant no.1 and 2 keep silence since 1985 to 2012 i.e. about 27 years. Hence, the preponderance of probability also lies in favour of the plaintiff that the said property was di- vided vide family settlement Mark PW1/3 and the concerned parties to the family settlement Mark PW1/3 also acted upon said family settlement and as a result of which the defendant no.1 shifted to first floor and the plaintiff shifted to second floor and since then the plaintiff has been residing at the second floor without any interference till 2012.
94. DW1 replied in negative when asked did he object to deposit of house tax by plaintiff after filing of the present suit. DW2 further deposed that she had no knowledge that after shifting on the second floor the plaintiff constructed two more bedrooms and one more toilet out of his own funds. DW2 has not denied that plaintiff constructed two more bedrooms and one more toilet out of his own funds on the second floor and therefore, preponderance of probability lies in favour of plain- tiff that he constructed two more bedrooms and one more toilet out of his own funds on second floor.
95. The Hon'ble Supreme Court of India in R.V.E. Venkat-
achala Gounder v. Arulmigu Viswesaraswami (supra) has held that in a suit for possession of property based on title, if the plaintiff creates high degree of probability of his title to own- ership, instead of proving his title beyond any reasonable Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -106- doubt that would be enough to shift the onus on the defendant and where the defendant fails to shift back the onus, the plaintiff's burden of proof would stand discharged.
96. The defendant no.1 and 2 have alleged that Mark PW1/3 is forged and fabricated document and it does not bear their signatures. However, the defendant no.1 and 2 has not taken any action against the plaintiff for fabricating Mark PW1/3. The question arises if the family settlement Mark PW1/3 is forged and fabricated document and the plaintiff had forged the signature of defendant no.1 and 2 on it then why no criminal complaint was made by them against the plaintiff for committing forgery.
97. In view of the above discussions, it is established that in the year 1964 when the said property was purchased by late Sh. Mool Chand Gupta, he was maintaining an Hindu Undi- vided Family. It is further established that the said property was divided as per family settlement Mark PW1/3 among plaintiff, defendant no.1 and defendant no.3. Accordingly, the issue no.1 and 6 are decided in favour of the plaintiff and against all the defendants.
ISSUE NO.2
2. If answer to issue no.1 is in favour of the plaintiff, whether the plaintiff is entitled to the decree of declaration declaring the sale deed dated 31.8.2009, agreement to Sell dated 5.9.2005, GPA dated Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -107- 5.9.2005, and conveyance deed dated 22.6.2012 as null and void? If so, its effect? OPP
98. The issue no.1 has been decided in favour of the plain-
tiff. The plaintiff has proved that he is co-owner of 2 nd floor of the said property, however, the defendant no.3 wrongly and il- legally executed agreement to sell dated 05.09.2005 in respect of 50 % share in the said property in favour of defendant no.6. Further, defendant no.3 had also illegally executed GPA dated 05.09.2005 with regard to 50 % share in the said property. Further, defendant no.6 illegally sold the 50 % share in the said property in favour of defendant no.2 vide sale deed dated 31.08.2009 as Document No.11400 in Addl. Book No.1, Vol. No.9483 from Pages 97-104 on 01.09.2009. Further, the de- fendant no.7 wrongly and illegally executed the conveyance deed in respect of said property situated at A-195, Defence Colony, New Delhi from leasehold into freehold on 22.6.2012 which was registered as Document No.10726 in Book No.1, Vol. No.12337 on Pages 40-43 on 22.6.2012. Therefore, the plaintiff is entitled to the decree of declaration declaring the sale deed dated 31.8.2009, agreement to Sell dated 5.9.2005, GPA dated 5.9.2005, and conveyance deed dated 22.06.2012 as null and void and these documents would have no effect. This issue no.2 is decided in favour of plaintiff and against all the defendants.
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -108- ISSUE NO.3
3. Whether the plaintiff is entitled to a decree of permanent injunction? OPP
99. As per the findings of issue no.1, the plaintiff is co-
owner of the second floor of property no.A-195, Defence Colony, New Delhi and therefore, he is in legal possession of the second floor of the said property and cannot be evicted from it without due process of law. The defendants have no authority to sell, alienate or create third-party interest in the second floor of the said property. Further, the peaceful posses- sion of the plaintiff over the second floor of the said property cannot be disturbed or interfered with by the defendants. Ac- cordingly, this issue no.3 is decided in favour of plaintiff and against all the defendants.
Issue no. 4(a) 4(a) Whether the suit is barred by limitation ? OPD1 & 2.
100. This issue pertains to the main suit of plaintiff Shyam Lal Gupta and the burden to prove this issue was on the defendant no.1 and 2.
101. According to defendant no.1 and 2 in the first quarter of 2008, plaintiff came to know that defendant no.3 had sold his share to defendant no.6 when defendant no.6 had removed some wall of the first floor. However, defendant no.1 and 2 failed to establish it. Even no such question was put to PW1 Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -109- in his cross-examination that he came to know in the first quarter of 2008 about the sale of 50 % share of defendant no.3 in the said property to defendant no.6. On the other hand, plaintiff categorically stated in the plaint and in his evidence that he came to know after 07.08.2012 about the said sale.
102. Article 59 of Limitation Act provides the limitation of three years to file a suit for cancellation of an instrument from the date when the facts entitling the plaintiff to have the in- strument cancelled first become known to him. In the case in hand, the plaintiff came to know about the sale deed executed by defendant no.3 in favour of defendant no.6 after 07.08.2012. The plaintiff filed the suit on 03.10.2012 hence, the suit was filed within limitation. Accordingly, the issue no.4(a) is decided in favour of plaintiff and against the defendant no.1 and 2.
ISSUE NO.4(b) 4(b) Whether the suit filed by Anand Prakash Gupta is barred by limitation? OPP.
103. The burden to prove this issue was on the plaintiff Shyam Lal Gupta.
104. Ld. Counsel for the plaintiff and Ld. Counsel for defen-
dant no.1 and 2 both relied upon ruling Ravinder Kaur Gre- wal & Ors. vs. Manjeet Kaur & Ors. (supra). The Hon'ble Supreme Court of India in Ravinder Kaur Grewal (supra) has Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -110- held in para no.51, 53, 57 and 58 as under:-
"51. In India, the law respect possession, persons are not permitted to take law in their hands and dis- possess a person in possession by force as observed in Late Yashwant Singh (supra) by this Court. The suit can be filed only based on the possessory title for appropriate relief under the Specific Relief Act by a person in possession. Articles 64 and 65 both are attracted in such cases as held by this Court in Desh Raj v. Bhagat Ram (supra). In Nair Service Society (supra) held that if rightful owner does not commence an action to take possession within the period of limitation, his rights are lost and person in possession acquires an absolute title.
53. There is the acquisition of title in favour of plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the prop- erty. The right ripened by prescription by his ad- verse possession is absolute and on dispossession, he can sue based on 'title' as envisaged in the open- ing part under Article 65 of Act. Under Article 65, the suit can be filed based on the title for recovery of possession within 12 years of the start of adverse possession, if any, set up by the defendant. Other- wise right to recover possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is synonym with adverse possession.
57. The adverse possession requires all the three classic requirements to coexist at the same time, namely, necvi i.e. adequate in continuity, necclam i.e., adequate in publicity and necprecario i.e. ad- verse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hos- tile colour of title is required. Trespasser's long pos- session is not synonym with adverse possession. Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -111- Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute ad- verse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.
58. Adverse possession is heritable and there can be tacking of adverse possession by two or more per- sons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be defeated on reentry except as provided in Article 65 itself. Tacking is based on the fulfillment of certain conditions, tacking maybe by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period."
105. The Hon'ble Supreme Court of India has made it clear in the Para 53 as discussed above that the period of limitation of 12 years only starts when adverse possession is claimed by a party/defendant. Otherwise right to recover possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. In the case in hand, the plaintiff has not claimed the adverse possession in his written statement to the suit filed by defen- dant no.1 and 2 seeking possession of 2nd floor of the suit Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -112- property from the plaintiff.
106. The ruling Meenakshi Suresh Gujar & Ors. (supra) re-
lied upon by the Ld. Counsel for the plaintiff is not applicable to the facts of the case in hand. First of all, it is the case of the plaintiff himself that the dispute arose first time in the year 2009 when the plaintiff came to know that defendant no.3 had sold his 1/3rd share in the said property to defendant no.6. It is also case of the plaintiff that till sending of notice dated 05.07.2012 by the defendant no.1 calling upon the plaintiff to vacate the second floor of the said property, the defendant no.1 and 2 never asked the plaintiff to vacate the second floor. The plaintiff claimed ownership in writing over the 2 nd floor of the said property by sending the reply dated 12.07.2012 to the legal notice dated 05.07.2012 of defendant no.1 and thus, the possession of the plaintiff in the suit property become ad- verse to the defendant no.1 and 2 on receipt of reply dated 12.07.2012. The Hon'ble Bombay High Court in Meenakshi Suresh Gujar & Ors (supra) has held in para 11 as under:-
"11. It needs to be noted that the possession becoming ad- verse under Article 65 of the Limitation Act and the con- cept of adverse possession operate in different fields. The possession becoming adverse as contemplated by Article 65 of the Limitation Act is the event when the plaintiff has notice of his right being denied by the other side. The Apex Court in paragraph 22 in Krishna Pillai Rajasekha- ran Nair (dead) by LRs v. Padmanabha Pillai (dead) by LRS & Ors. reported in (2004) 12 SCC 754 has observed in relation to the suit for partition that when the plaintiff has notice of his entitlement to partition being denied. In Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -113- my opinion, therefore, in the present case the plaintiff had notice of his title being denied by way of written statement in the year 1999. The application, therefore, filed in the year 2017 is ex facie barred by limitation. Therefore, in my opinion, the order passed by the Trial Court deserves to be set aside. Hence, following order:
(a) xxxxxxxxx
(b) xxxxxxxxx"
107. In the case in hand, the defendant no.1 and 2 had the notice of their title being denied by the plaintiff vide his reply dated 12.07.2012 and the defendant no.1 and 2 filed the suit on 06.08.2012 within one month, therefore, their suit is not barred by limitation. Accordingly, this issue is decided in favour of defendant no.1 and 2 and against the plaintiff. ISSUE NO.5
5) Whether the suit is barred U/s 4 of Benami Transactions (Prohibition) Act? OPD 1 & 2.
108. The burden to prove this issues was on the defendant no.1 and 2.
109. Section 1 and 4 of Benami Transaction (Prohibition) Act, 1988 read as under:-
"1. Short title, extent and commencement.--
(1) This Act may be called the Prohibition of Benami Property Transactions Act, 1988. (2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) The provisions of sections 3, 5 and 8 shall come into force at once, and the remaining provisions of this Act shall be deemed to have come into force on the 19th day of May, 1988.
4. Prohibition of the right to recover property held benami.--
Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -114- (1) No suit, claim or action to enforce any right in re- spect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply-
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other person standing in a fidu- ciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."
110. As per Section 1(3) of Benami Transaction (Prohibi-
tion) Act, 1988 all its provisions except 3, 5, 8 came into force on 19.05.1988. Thus, Section 4 of Benami Transaction (Prohibition) Act, 1988 came into force on 19.05.1988. The property in question was purchased on 08.07.1964 much prior of enforcement of Benami Transaction (Prohibition) Act, 1988. The said Act is not retrospectively applicable. Even otherwise, Sub-Section (3) of Section 4 of Benami Transac- tion (Prohibition) Act, 1988 exempts the joint family property / HUF property from the operation of Section 4 of the said Act. The contention of the Ld. Counsel for defendant no.1 and 2 that ruling relied upon by the Ld. Counsel for the Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -115- plaintiff pertain to much prior to Benami Transaction (Prohi- bition) Act, 1988, therefore, not applicable, has no merit. The said ruling deals with the concept of HUF / Joint Hindu Fam- ily and not to benami properties. The concept of HUF still prevails and who are interested can form HUF. In the case in hand, it is already discussed above that the said property was purchased by late Sh. Mool Chand Gupta and at that time he was running an HUF. Hence, the suit of the plaintiff is not barred by Section 4 of Benami Transaction (Prohibition) Act, 1988 and this issue is decided in favor of plaintiff and against the defendants.
ISSUE NO.8 "Issue no.8 Whether Anand Prakash Gupta is entitled for mesne profits / damages if so at what rates? OPD."
111. As per findings on issue no.6, the defendant no.1 and 2 are not entitled to the recovery of possession of the second of the said property, therefore, they are also not entitled for mesne profits / damages. Accordingly, this issue is decided in favour of plaintiff and against the defendant no.1 and 2. RELIEF:
112. As per the findings on the issue no.1, 2 and 3, the LRs of the plaintiff are entitled for declaration that the LRs of the plaintiff, namely, Ritu Gupta, Ms. Shreya Gupta and Ms. Shrishti Gupta are co-owners of second floor of property Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -116- bearing no.A-195, Defence Colony, New Delhi. The said LRs of the plaintiff are also entitled for decree of declaration declaring the sale deed dated 31.8.2009, agreement to sell dated 5.9.2005, GPA dated 5.9.2005, and conveyance deed dated 22.06.2012 as null and void and these documents would have no effect. LRs of plaintiff are also entitled for a decree of permanent injunction.
113. Accordingly a decree is passed declaring LRs of the plaintiff, namely, Ritu Gupta, Ms. Shreya Gupta and Ms. Shrishti Gupta as co-owners of second floor of property bear- ing no.A-195, Defence Colony, New Delhi. The Sale deed dated 31.8.2009 as Document No.11400 in Addl. Book No.1, Vol. No.9483 from Pages 97-104 on 01.09.2009, agreement to sell dated 5.9.2005, GPA dated 5.9.2005, and Conveyance Deed in respect of said property situated at A-195, Defence Colony, New Delhi from leasehold into freehold on 22.06.2012 which was registered as Document No.10726 in Book No.1, Vol. No.12337 on Pages 40-43 on 22.6.2012 are declared as null and void and these documents would have no effect. Further, a decree of permanent injunction is also passed in favour of LRs of plaintiff, namely, Ritu Gupta, Ms. Shreya Gupta and Ms. Shrishti Gupta thereby restraining the LRs of defendant no.1, and defendant no.2, defendant no.3, 4, 5 and 6 from selling, alienating or creating third-party interest Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta -117- in respect of second floor of the property bearing no.A-195, Defence Colony, New Delhi. LRs of defendant no.1, and de- fendant no.2, 3, 4, 5 and 6 are further restrained from forcibly removing the LRs of the plaintiff from the second floor of the property bearing no.A-195, Defence Colony, New Delhi. LRs of defendant no.1, and defendant no.2, 3, 4, 5 and 6 are fur- ther restrained from interfering in peaceful enjoyment of the LRs of the plaintiff over the second floor of the property bearing no.A-195, Defence Colony, New Delhi.
114. Thus, the suit titled Shyam Lal Gupta (since deceased) through LRs vs. Anand Prakash Gupta (since deceased) through LRs & Ors. Civ DJ No.11142/2016 (Old Case No.3041/2012) is decreed. The suit titled Anand Prakash Gupta (since deceased) through LRs & Anr. v. Shyam Lal Gupta (since deceased) through LRs Civ DJ No.11143/2016 (Old Case No.2344/2012) is dismissed.
115. No order as to costs. Decree sheet be prepared accordingly.
116. A signed copy of judgment and decree be kept in both the files. Digitally signed by Pritam File be consigned to record room. Pritam Singh
117. Singh Date:
2026.05.02 16:26:13 +0530 Announced in the open court (PRITAM SINGH) on 02nd day of May, 2026 DISTRICT JUDGE-04/ SOUTH EAST/SAKET COURTS/DELHI Civ DJ No.11142/2016 (Old Case No.3041/2012) Shyam Lal Gupta vs. Anand Prakash Gupta & Ors.
And Civ DJ No.11143/2016 (Old Case No.2344/2012) Anand Prakash Gupta & Anr. v. Shyam Lal Gupta