Delhi District Court
Daya Chand vs Sh. Harish Sehgal on 31 January, 2023
IN THE COURT OF SH. PRITU RAJ : CIVIL JUDGE : NORTH DISTRICT,
ROHINI COURTS : DELHI
Suit No.: 537581/16
CNR No. DLNT-03-001283-2016
In reference:
1. DAYA CHAND
s/o Lt. Sh. Ram Chander
r/o House no. 45,Village Mukandpur,
Delhi-42
2. SH. SURAT @ SURTE SINGH
s/o Lt. Sh. Amar Singh
r/o H. No. 42, Village Mukandpur,
Delhi-42 ...............Plaintiff
vs.
1. SH. HARISH SEHGAL
s/o Lt. Sh. Sawan Mal Sehgal
r/o H. No. 42, Chanderlok,
Road no. 44, Pitampura, Delhi-34
2. SH. MUKESH (property dealer)
s/o Sh. Chattar Singh,
r/o H. No. B-74, Gali no. 3,
Part I, Village Mukandpur,
Delhi-42
3. SH. HARBANS LAL SEHGAL
s/o Sh. Sawan Mal Sehgal
r/o H. No. 2-c/39, New Rohtak Road, Near Liberty Cinema
New Delhi-110005
4. SMT. ATTRI DEVI
w/o Sh. Chandi Ram
r/o 100, Rajendra Park, Nangloi,
Delhi-41 ........... Defendants
Date of Institution : 04.02.2014
Date of reservation of Judgment : 16.01.2023
Date of Judgment : 31.01.2023
Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 1 of 23
JUDGMENT
1. The present suit has been filed by the plaintiffs against the defendants seeking the reliefs as contained in the prayer clause of the plaint.
PLAINT:
2. The case of the plaintiffs as per plaint in brief is that the fathers of plaintiff no. 1 and 2 were real brothers and the owners and in possession of agricultural land bearing Khasra no. 282/53 min, measuring 3 bigha located in the Revenue Estate of Village Mukandpur, Delhi [hereinafter called suit property] and after the death of the fathers of Plaintiff no. 1 and 2 on 04.03.2000 and on 12.04.2008 respectively, the Plaintiffs became the joint / co-owners of the suit property and till 08.03.2014, they were in exclusive possession of the suit property being co-owners. It is the case of the Plaintiff that on 14.01.2014, D-1 and 2 tried to forcibly occupy the suit property by dumping malba upon it, to which they were confronted by the Plaintiffs and hence, the intention of the Defendants was thwarted. It is further case of the plaintiffs that the SHO PS Bhalswa Diary called the Plaintiffs to the police station wherein D-1 and 2 were also present and since the Defendants failed to show any title papers qua the suit property, the SHO directed them to resolve the matter through civil proceedings. It is further case of the plaintiff that on 28.01.2014, the Defendants along with their 4-5 associates again tried to take over the suit property but they were stopped from doing so by the Plaintiffs and complaint in this regard was made to the SHO PS Bhalswa Diary requesting appropriate action but no action was taken by the police authorities. It is further case of the plaintiff that on 02.03.2014, the Defendants again visited the suit property and tried to raise boundary wall but were stopped from doing do due to timely intervention by the Plaintiff and despite the matter being reported again to the police authorities, no Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 2 of 23 action was taken by them. It is further case of the plaintiff that they had earlier filed a suit for permanent injunction against D-1 and 2, Tehsildar and the SHO PS Bhalswa Diary wherein D-1 and 3 had appeared and upon service of their application u/O XXXIX R 4 CPC, as well as receipt of summons in suit no. 30/2014 titled as "Harbans Lal Sehgal and Anr. Vs. Daya Chand and Anr.", the Plaintiffs came to know about a sale deed dated 23.06.1988 allegedly executed by their respective fathers in favour of D-4 and the subsequent sale deed dated 02.03.1989 executed by D-4 in favour of D-1 and 3. It is further case of the plaintiff that the Defendants have connived with SHO PS Bhalswa Diary after getting injunction order dated 04.03.2014 and in the intervening night of 8 th and 9th March, 2014, they constructed a boundary wall around the suit property along with rooms thereon, which was demolished by the MCD since such construction was illegal. It is further case of the plaintiff that the mutation order dated 28.01.2014 passed by the tehsildar was done in collusion with the Defendant. The Plaintiffs further allege that no sale deed had ever been executed in favour of the Defendants by their father and hence, the Defendants do not have any title to the suit property and hence, the sale deed dated 23.06.1998 and 02.03.1989 ought to be declared null and void. Hence the present suit.
RELIEF:
3. Following reliefs have been sought on behalf of the plaintiff in the plaint:
(i) To pass a decree of declaration in favour of the Plaintiffs and against the Defendants declaring sale deed dated 23.06.1988 allegedly executed by Lt. Sh.
Ram Chander and Amar Singh, fathers of P-1 and 2 respectively, in favour of Attri Devi pertaining to the suit property and subsequent sale deed dated 02.03.1989 by D-4 in favour of D-1 & 3 as manipulated, forged, null & void.
(ii) To pass a decree of mandatory injunction in favour of the Plaintiffs and against the Defendants directing them and their representatives / associates / successors etc. to restore the suit property with the Plaintiff to its original Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 3 of 23 position.
(iii) Costs of the suit be granted in favour of the Plaintiffs and against the Defendants.
(iv) Relief.
DEFENCE:
4. The Defendant no. 1 and 3 entered appearance and filed their joint written statement wherein they claimed themselves to be the owner and in possession of the entire land measuring 13 bigha and 16 biswa comprised in khasra no. 282/53 min, 282/53/1, 282/53/2 located in village Mukandpur, Delhi having bought the same by way of a registered sale deed dated 02.03.1989 from the predecessor in interest, i.e., D-4 and that they have in occupation and possession of the suit property since the said purchase. The rest of the contents of the plaint were denied in toto.
5. D-4 namely Attri Devi, who was later on impleaded as a party vide order dated 23.01.2016, entered appearance and filed her WS wherein she stated that the suit property had been bought by her through a sale deed dated 21.06.1988 from the fathers of the Plaintiffs which was subsequently transferred to D-1 and D-3 vide sale deed dated 02.03.1989 along with physical possession. The rest of the contents of the plaint were denied in toto.
6. Vide order dated 21.01.2017, the following issues were framed:-
(I) Whether the Plaintiff is entitled to a decree of declaration as prayed for?
OPP (II) Whether the Plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP (III) Whether the Plaintiff has not come to the Court with clean hands, concealing material facts and thus, is not entitled to the equitable relief of Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 4 of 23 injunction? OPD-1 and 3 (IV) Whether the suit is not maintainable in its present form? OPD-1 and 3.
(V) Whether the suit is barred by the limitation? OPD-1 and 3.
(VI) Whether the suit property has been correctly valued for the purpose of Court fees? OPD-1 and 3.
(VII) Whether the suit is barred u/O II R 2 CPC for no cause of action? OPD-1 and 3.
(VIII) Whether the Defendant no. 4 had purchased the suit property from Sh. Ram Chander and Sh. Amar Singh, i.e., father of P-1 and 2 herein respectively, who again sold the same to Sh. Harbanslal Sehgal and Harish Sehgal vide sale deed dated 02.03.1989 and physical possession was also handed over to Sh. Harbans Lal Sehgal and Sh. Harish Sehgal? OPD-4.
7. To substantiate their case, the plaintiffs have examined three witnesses.
8. PE was closed vide order dated 08.04.2019.
DEFENDANTS' EVIDENCE
9. The defendant examined five witnesses.
10. DE was closed vide order dated 23.11.2022.
11. Final arguments were heard on behalf of both the parties on 16.01.2023 and matter was fixed for judgment vide order of the said date.
FINDINGS OF THE COURT:-
12. Before embarking to decide the present case, it would be appropriate to reiterate the burden of proof required to be discharged in civil proceedings. As laid down in Postgraduate Institute of Medical Education and Research v. Jaspal Singh, (2009) 7 SCC 330, the burden which ought to be discharged in civil proceedings in not as strict as in criminal cases and in order for any party to Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 5 of 23 succeed, he/it is required to prove his/its case on the preponderance of probabilities. The relevant portion of the aforesaid pronouncement is hereby produced here for the sake of brevity:
It has been held that there is a marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt."
13. Further, Section 101 of the Evidence Act, 1872 defines " burden of proof"
and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
14. Having determined the burden of proof required to be discharged in civil cases, this court will now proceed to give it issue wise findings as per the issues framed on 29.03.2016, are as follows:-
Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 6 of 23Issue no. (vi) (VI) Whether the suit property has been correctly valued for the purpose of Court fees? OPD-1 and 3.
15. The burden of proving this issue was upon the Defendant no. 1 and 3. The Defendants have vehemently argued that the Plaintiffs have derived their rights from their respective fathers who were the recorded owners and had executed a registered sale deed in favour of Smt. Attri Devi in the year 1988 and hence, the suit ought to have been valued as per the market value of the subject property or the consideration amount contained in the sale deed. The D-1 to 3 have also vehemently argued that the ad valorem Court fees ought to be paid as the Defendants have sought the relief of possession under the garb of mandatory injunction. Per contra, the Plaintiffs have argued that no evidence has been led by the Defendants to prove the current issue. The Plaintiffs further contend that they have not claimed that the sale deed in question was executed by their fathers and accordingly, the suit has been correctly valued for the purpose of court fee and pecuniary jurisdiction.
16. It is settled law that in order to decide the question of Court fee payable in a suit, averments made in the plaint are to be seen and the decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. Moreover, it is a settled law that the plaint has to be read as a whole in order to determine the actual relief which has been claimed. Reliance in this regard is placed on Nisheet Bhalla and Ors. Vs. Malind Raj Bhalla and Ors. AIR 1997 Delhi 60. Moreover, it is also settled law that ad valorem court fee has to be paid by a party who is a non executant to an instrument and has sought the relief of declaration and possession. Reliance in this regard is placed Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 7 of 23 upon the decision of Hon'ble Apex Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Ors. AIR 2010 SC 2807 where it was held, "but if B, a non executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem Court fee as provided under S. 7 (iv) (c) of the Act." The same has been further reiterated by the Hon'ble Apex Court in Shailendra Bhardwaj and Ors. Vs. Chandra Pal and Anr. (2013) 1 SCC 579 where it was held as follows:
"On comparing the above mentioned provisions, it is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in cases where the Plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17(iii) of Schedule II of the Court Fees Act makes it clear that this Article is applicable in cases where the Plaintiff seeks to obtain a declaratory decree without consequential reliefs and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will or sale deed on the question of payment of court fees, then Article 17(iii) of Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable.
17. Now, coming to the facts of the present case, the first relief which has been claimed by the Plaintiffs is the relief of declaration and they have gone on to further claim the relief of mandatory injunction for restoration of the suit property to them. A perusal of the averments contained in the plaint shows that the Plaintiffs have specifically alleged that they are not in possession of the suit property, as averred in para 4 of the plaint, since 08.03.2014 and they have gone on to further aver that the suit property is currently lying open and vacant. Moreover, as per the own averments of the Plaintiff, they were not even aware as to the identity of the suit property as by their own admission, as reflected in Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 8 of 23 the cross examination dated 08.04.2019, PW-3 Daya Chand has admitted that they were not aware about the fact that the suit property belonged to them since it used to be submerged in water most of the time. In light of such specific admission, the possession of the Plaintiffs over the suit property cannot be deemed by any stretch of imagination, moresoover, in light of the existence of sale deed executed by their fathers in favour of D-4. It is not the case of the plaintiffs that defendants no. 1 and 3 were in permissive possession of the suit property and they seek to recover such possession. Moreover the defendants have also denied the ownership of the plaintiffs and have claimed the ownership by way of a registered sale deed. Since it is settled law that in cases where a plot of land is vacant, possession follows the title, the case of the Plaintiffs essentially becomes one for claiming possession from the Defendants and for suits instituted to claim possession, the Court fees which ought to be paid is ad valorem in terms of the aforesaid pronouncements.
18. Accordingly, this issue is decided in favour of Defendants 1 and 3 and against the Plaintiffs.
Issue no. (v) (V) Whether the suit is barred by the limitation? OPD-1 and 3.
19. The burden of proving this issue lay upon D-1 and 3.
20. The case of the Plaintiffs is for the declaration of sale deeds dated 23.06.1988 and 02.03.1989 to be declared null and void along with the relief of restoration of possession by way of mandatory injunction. The impugned suit was filed on 04.02.2014. The Limitation Act, 1963 [hereinafter called 'Limitation Act'] prescribes the period of limitation, for declaring an instrument as forged, as three years from the date when the issue or registration becomes known to the Plaintiff (as per Article 56 of the Limitation Act) and a similar Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 9 of 23 period of limitation, i.e., 3 years for the relief of injunction (as per Article 113) of the Limitation Act.
21. In the present case, the suit has been filed after a period of almost 25 years since the execution of the sale deeds. The Plaintiffs have claimed, as per the averments in their plaint that they got to know about the impugned sale deed only when they received summons of civil suit no. 30/2014 titled "Harbans Lal Sehgal and Anr. Vs. Daya Chand and Anr." The Defendants have vehemently argued that PW-3 in his cross examination dated 16.01.2019 changed his stand and stated that he came to know about the sale deed when Defendants tried to take forcible possession. The Defendants further argued that the predecessor in interest of P-1 died in the year 2000 and no effort was made by the Plaintiff in these 14 years to communicate to any authority about his succession nor was any complaint filed during the said period as the documents Ex PW-1/1 pertain to the year 1991-92 reflects the change of ownership in favour of D-1 and D-3 qua the suit property.
22. Per contra, the Plaintiffs have argued that the Defendants have failed to lead any evidence to show that at the time of filing of the present suit, the Plaintiffs were aware about the sale deed in question.
23. Article 56 and Article 113 of the Limitation Act, as discussed above, determine the time from which the prescribed period starts to run, respectively as regards suits wherein the relief of declaration or mandatory injunction (as in this case) is claimed. While Article 56 states that the prescribed period starts to run from the date when the registration becomes known to the Plaintiff, Article 113 of the Act states that the prescribed period starts to run from the date when the right to sue accrues.
24. It is the case of the Plaintiff that he was not aware about the registration of either of the sale deed dated 23.06.1988 or 02.03.1989 and he got to know about Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 10 of 23 them only upon receipt of summons in civil suit no. 30/2014 titled "Harbans Lal Sehgal and Anr. Vs. Daya Chand and Anr." Even though the burden of proving the present issue lay upon the Defendant no. 1 and 3, this Court is of the opinion that the Defendants have discharged the initial onus of proof qua the present issue in light of the fact that as per the own averments of the Plaintiff, as contained in his plaint, while the sale deeds had been executed in the year 1988 and 1989, the present suit was filed in the year 2014. The onus of proof, therefore, shifted upon the Plaintiff to show that the suit had been filed within the prescribed period of three years from the date when he got to know about the registered sale deeds. In regard to this, while the Plaintiff has claimed in his plaint that he got to know about the said sale deeds upon receipt of summons as stated above, he has contradicted himself in his cross examination dated 16.01.2019 wherein he has stated that the sale deed dated 21.06.1988 came to his knowledge when the Defendants tried to take forcible possession of the suit property. Therefore, there exists a material contradiction as regards the date on which the Plaintiffs became aware as to the existence of the sale deeds. Furthermore, the Plaintiffs have also claimed the benefit of S. 17 of the Limitation Act since the very foundation upon which the first relief of the Plaintiffs is based is that the sale deed in question was manipulated, forged and was never executed by the father of the Plaintiffs- thereby claiming that the impugned sale deeds were executed as a result of a fraud. It is a settled law that in order to claim the benefit of S. 17 of Limitation Act, the Plaintiff has to prove that he could not have discovered the fraud by due diligence. He also has to prove that there was the existence of a fraud and the other as regards the discovery of fraud. Reliance in this regard is placed on Rattan Singh and Ors. Vs. Nirmal Gill and Ors. (2020 SCC Online SC 936).
25. In the present case, as regards the existence of a fraud, a joint determination of issues no. 1 and 8 shows that the Plaintiff has been unable to Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 11 of 23 prove the same. Hence, in light of the non existence of the fraud, there is no occassion for this discovery and accordingly, the period of limitation cannot be extended for the Plaintiff.
26. Moreover, a perusal of the material on record shows that the plaintiffs have failed to take any steps for impleading their names in the revenue records since the death of the fathers in the years 2000 and 2008 respectively. Due diligence, which is one of the pre-requisite to be fulfilled whenever the benefit of Section 17 Limitation Act is claimed, therefore is lacking in the present case for it cannot be said by any stretch of imagination that a person who has failed to take steps for getting his name impleaded in the revenue records can be said to have exercised due diligence. Hence, this court is of the opinion that the plaintiffs have failed to exercise due diligence for if such was the case, the factum of registration of the sale deeds would have been in the knowledge of the plaintiffs and the plaintiffs cannot claim any benefit from the lack of taking steps in all their behalf.
27. Accordingly, this issue is decided in favour of the Defendants and against the Plaintiffs.
Issue no. (iv) and (vii) (IV) Whether the suit is not maintainable in its present form? OPD-1 and 3.
(VII) Whether the suit is barred u/O II R 2 CPC for no cause of action? OPD- 1 and 3.
28. Both these issues are being taken up together for the purpose of determination as their determination would involve appreciation of common facts and evidences. The burden of proving these issues lay upon D-1 and 3.
29. Before proceeding further, it would be appropriate to reproduce O II R 2 CPC for the sake of brevity:
Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 12 of 23"2. Suit to include the whole claim -
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim - Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs -
A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation - For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
30. The law as regards when a suit would be held to be barred by O II R 2 CPC has been elucidated by the Hon'ble P & H High Court in Vipan Kumar Vs. Smt. Asha Lata Ahuja and Ors. R.S.A. No. 483 of 1991 (O&M) Date of decision: 27.05.2009 wherein it was held as follows:
"The rule contained in this provision is designed to counteract two evils, namely; splitting up claims and splitting up remedies. For the applicability of this provision, two conditions are precedent; firstly, that the earlier suit and the second suit must arise from same cause of action; and secondly, the two suits must be between two parties. The test for finding out whether subsequent suit would be barred because of an earlier one is whether the claim in the subsequent suit is, in fact, founded on the cause of action distinct from that which was the foundation of the former suit.
In Sidramappa v. Rajashetty and others, AIR 1970 SC 1959, the Apex Court on reference to decision in Mohd. Hafiz v. Mohd. Zakaria, AIR 1922 Privy Council 23, held that the requirement of Order 2 Rule 2, Code of Civil Procedure, is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. `Cause of action' means the cause of action for which the suit was brought. Cause of action is a cause of action which gives occasion for an forms the foundation of the suit. If that cause of action enables a Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 13 of 23 person to ask for a larger and wider relief than that to which the limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. Reference may also be made to judgment in Mohammad Khalil Khan and others and Mahbub Ali Mian and others, The Law Reports (Indian Appeals), Vol. 75, 1947-48 121 wherein one of the principles laid down by the Privy Council is that the cause of action has no relation whatsoever to the defence that may be taken by the defendant, nor does it depend on the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. It is thus, clear that simply because the relief sought for by the plaintiff in the previous suit was for injunction, would not mean that the relief of specific performance sought for in the subsequent suit is founded on a cause of action distinct from that which was the foundation of R.S.A. No. 483 of 1991 the previous suit. In fact, a reading of para 10 of this suit makes it clear that on 19.5.1981 when suit for injunction was filed, a right had already accrued to the plaintiff to sue for specific performance of the contract on account of breach committed by the defendants in not executing the sale deed on or before the date fixed in the agreement. Foundation of the previous suit for permanent injunction was the agreement to sell dated 2.6.1979 and refusal by the defendants to execute the sale deed in favour of the plaintiff. The basis of the suit for specific performance of the contract is again the agreement to sell dated 2.6.1979 and the breach of contract committed by the defendants. Plaintiff in this case not only omitted to sue for specific performance of the contract or for recovery of earnest money liquidated damages, but also did not seek leave of the Court to sue for such relief afterwards."
31. In the present case, no evidence whatsoever, like the pleadings / orders of the earlier suit were produced by the Defendant no. 1 and 3 in order to discharge the burden of proof lay upon the Defendant to prove these issues. In the absence of any evidence being led, this issue is being decided against the Defendants and in favour of the Plaintiff.
Issue no (i) (I) Whether the Plaintiff is entitled to a decree of declaration as prayed for? OPP Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 14 of 23
32. The burden of proving this issue lay upon the Plaintiffs.
33. In the present case, the Plaintiffs have sought the relief of cancellation of sale deeds dated 23.06.1988 and 02.03.1989 on the ground that while the earlier sale deed, i.e., 23.06.1988 was manipulated / forged / inoperative / sham and is accordingly void, they have sought the relief of cancellation of the second sale deed dated 02.03.1989 on the ground that since the second sale deed was based upon the earlier sale deed, the same also ought to be declared null and void.
34. S. 31 of the Specific Relief Act, 1963 [hereinafter called 'SRA'] deals with the instances wherein the cancellation of an instrument may be ordered. The same is being reproduced below for the sake of brevity:
31. When cancellation may be ordered.--
(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
35. What transpires from the above provision is that in order for an instrument to be cancelled, the same must be void or voidable against the person who has sought its cancellation. The case of the Plaintiffs herein is that the sale deed is void. In order to elucidate upon the meaning of the term 'void' and 'voidable', reference ought to be made to the relevant provisions of the Indian Contract Act, 1872 [hereinafter called 'ICA'] wherein the terms void and voidable have been defined and the same is being reproduced below for the sake of brevity:
"2 (g) An agreement not enforceable by law is said to be void.Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 15 of 23
2 (i) An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract."
36. In the present case, the Plaintiffs have claimed that their fathers never executed the sale deed dated 23.06.1988 ever and the same is a manipulated and forged document. The burden of proving the said fact lay upon the plaintiffs since the same have been asserted by them i.e. it was up to the plaintiffs to adduce evidence for the proof of manipulation of the sale deeds in question. However, apart from baldly stating that the sale deeds were never executed by their fathers and the same are manipulated, no evidence have been adduced by the plaintiffs to prove the said facts. It is settled law that a case cannot be decided merely on the basis of oral averments rather the same has to be decided on the basis of evidence which has to be adduced by the parties on whom the burden of proof lies. However, the plaintiffs have failed in the discharge of the said duty and accordingly the version of the plaintiffs cannot be accepted.
37. Moreover, the Plaintiffs were mandated by virtue of the provisions of O VI R 4 CPC to mention all the relevant particulars including the date and time regarding the manipulation, as alleged by the Plaintiffs, as a result of which the sale deed dated 23.06.1988 was executed. However, no such particulars have been included by the Plaintiff in the averments contained in the plaint. The Hon'ble Apex Court in Placido Francisco Pinto (D) by LRs and Anr Vs. Jose Francisco Pinto and Anr (Civil Appeal no. 1491/2007), while dealing with the aforesaid provision of law, i.e., O VI R 4 CPC, held as follows:
"Still further, in terms of Order VI Rule 4 of the Code, For short, the 'Code' in all cases in which the party pleading relies on any misrepresentation, fraud, or undue influence shall state in the pleadings the particulars with dates and items in the pleadings. The extract from the written statement or the plaint does not show that there is any pleading of misrepresentation or fraud. The evidence led by the Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 16 of 23 respondents is not indicative of any instance of fraud or misrepresentation as well."
38. Since the Plaintiffs have failed to include the particulars as regards the time and place of manipulation which resulted in the execution of the sale deed dated 23.06.1988 and therefore, having not have complied with the provisions of O VI R 4 CPC, no reliance can be placed upon the oral averments of the Plaintiffs.
39. Moreover, the documents in question which have been sought to be cancelled by the Plaintiffs are registered documents and there is a presumption of genuineness regarding such registered instruments with the burden of proof laying upon the person who seeks to rebut the said presumption. Even otherwise, the burden lay upon the Plaintiffs to prove by bringing contradictory evidence that the sale deeds dated 23.06.1988 and the resultant sale deed 02.03.1989 were manipulated, sham and hence, ought to be declared null and void since it was the Plaintiff who alleged the existence of such facts. However, no evidence, whatsoever, has been adduced by the Plaintiffs to show that the said sale deeds were manipulated and hence, should be declared void. Therefore, in the considered opinion of this Court, the presumption attached to the sale deeds, being registered instruments, remains unrebutted and apart from bald statements, nothing else has come on record to rebut their genuineness. In fact, as per the own version of the Plaintiffs, they have admitted that they did not have any knowledge about the aforesaid sale deeds and they got to know about the same only when they allegedly received the summons of civil suit no. 30/14, as reiterated in Para 14 of the plaint. Moreover, it is further case of the plaintiffs that their fathers died in the year 2000 and 2008. Hence, it fails to appeal to reason that a person who was not present at the time when the documents in question, i.e., the sale deeds, were executed or was not even aware about the Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 17 of 23 existence of such document, can allege that the said documents are manipulated against the executor / party to such document.
40. Furthermore, since the document in question is a document which is required by law to be registered, no evidence of any oral agreement or statement can be admitted for the purpose of contradicting / varying / adding to or subtracting from its terms by virtue of the provisions of S. 92 of the Indian Evidence Act, 1872 [hereinafter called IEA]. However, while the parties would be at liberty to prove any fact which would invalidate such documents like fraud, intimidation etc., as contained in proviso (1) of S. 92 IEA, the Plaintiffs have failed to prove the existence of any such fact, as discussed above, and hence, no evidence can be allowed to be lead by the Plaintiffs for the purpose of contradicting / varying / adding to or subtracting from its terms. Reliance in this regard is again placed on Placido (supra).
41. At this stage, it would be appropriate to discuss the contention of the plaintiffs that since the defendants have accepted in the certified copes of mutation filed vide no. M-157/MTD/89-90 dated 22.09.1989, Ex. DW-4/P1 (colly) at page no. 9, that D-4 i.e. Smt. Attri Devi was not the owner of property in khasra no. 282/53. While the contention of the plaintiffs does seem attractive in the first instance, a deeper look into the said documents makes it clear that the application for mutation was pertaining to property located in khasra no 2382/53-1 (8-0) and 282/53-2 (2-16) i.e. for the total area of 10 bighas and 16 biswas whereas the suit property is 3 bighas only. Therefore, the application in the mutation file does not pertain to the suit property and no sanctity can be attached to the same for the purposes of the present case. This observation is further buttressed by the provisions of S. 92 IEA, as discussed above. Moreover, a perusal of the sale deed dated 02.03.1989 shows that D-4 had sold the suit Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 18 of 23 property measuring 3 bighas to the defendants no. 1 and 3 as part of a piece of land measuring 13 bighas and 16 biswas. It is submitted by the Defendant-1 and 3 that since the suit property was mutated in the name of the earlier owners, at the time when the said document, i.e., Ex. DW-4/P-1 (Colly), was filed, they had applied for mutation of land measuring 10 bighas and 16 biswas only and the suit property was later mutated in their name, i.e., D-1 and D-3's name later on by a separate application. This averment of the Defendants no. 1 and 3 has been admitted by the Plaintiff in para 13 (A) of his plaint, albeit with the contention that it was done on account of a collusion with the Tehsildar. However, no evidence, whatsoever, has been adduced to prove such collusion. In the absence of the same, no veracity can be attached to the version of the Plaintiff. Even otherwise, it is a settled law that mutation entries, by themselves, do not confer title and since the title in the present case has been claimed on the basis of a registered sale deed, the execution of which could not be challenged by the Plaintiffs, the objections of the Plaintiffs are hereby rejected as being devoid of merit.
42. Accordingly, this issue is decided in favour of the Defendants and against the Plaintiffs.
Issue no. (viii) (VIII) Whether the Defendant no. 4 had purchased the suit property from Sh. Ram Chander and Sh. Amar Singh, i.e., father of P-1 and 2 herein respectively, who again sold the same to Sh. Harbanslal Sehgal and Harish Sehgal vide sale deed dated 02.03.1989 and physical possession was also handed over to Sh. Harbans Lal Sehgal and Sh. Harish Sehgal? OPD-4.
43. The burden of proving this issue lay upon the D-4. However, no evidence whatsoever, was lead by D-4. However, D-1 and 3 had also alleged that they Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 19 of 23 became the owner of the property in question by buying the same through a registered sale deed from D-4 who had, in turn, bought the suit property from the fathers of the Plaintiffs. In the considered opinion of this Court, even though no evidence was led by Defendant-4, the evidence led by D-1 and 3 cannot be ignored. Both D-1 and 3 have claimed that they bought the suit property from Defendant-4 by way of a registered sale deed dated 02.03.1989, who had bought the same vide a registered sale deed dated 23.06.1988 from the fathers of the Plaintiffs. Therefore, sufficient evidence has been adduced by D-1 and 3 in the form of a registered sale deed to prove the factum of purchase of suit property by D-4 from the fathers of the Plaintiffs and the subsequent sale of the same to D-1 and D-3, again by a registered sale deed. As discussed above, a registered document carries a presumption of genuineness which can only be rebutted by leading strong and cogent evidence to the contrary. In the present case, no such evidence of the said kind has been brought by the Plaintiffs and hence, on the basis of evidence adduced, this issue is decided in favour of the Defendants and against the Plaintiffs.
Issue no. (ii) (II) Whether the Plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP
44. The burden of proving this issue lay upon the Plaintiffs.
45. The case of the Plaintiffs is based upon their claim that the suit property in question was never sold by their fathers to D-4 and accordingly, any subsequent alienation of the same to the D-1 and D-3 would have no sanctity in the eyes of law. The Plaintiffs have further claimed their title and ownership to the suit property being the class-I heirs of their fathers and they have further gone on to state that their ownership stands corroborated from the entries made in the Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 20 of 23 revenue records. Hence, it becomes apparently clear that the line of argument relied upon by the Plaintiffs to prove the current issue is two pronged- firstly, the execution of sale deed in favour of D-4 by their fathers and the subsequent alienation of the same by D-4 to D-1 and D-3 is bad in law and no sanctity can be attached to it on account of the same being a manipulated document, and secondly, their ownership and possession stands corroborated from the revenue records. This Court will now proceed to adjudicate the aforesaid claims one by one.
46. Coming to the first claim as regards the claim of ownership and title of the suit property based upon the fact that the sale deeds dated 23.06.1988 and 02.03.1989 have no sanctity in the eyes of law, nothing would be gainsaid by stating that the Plaintiffs have miserably failed to discharge the onus of proof which lay upon them to prove that the execution of the aforesaid sale deeds was as a result of manipulation and forgery, and hence, no reliance can be placed upon them. A detailed appreciation of the evidence lead by both the parties has already been done while determining issue no. 1, which was decided in favour of the Defendants. Hence, there lies no merit to the first line of argument sought to be advanced by the Plaintiffs.
47. Now coming to the second line of argument, it is a settled law that revenue entries do not confer ownership rights. Reliance in this regard is placed on Prahlad Pradhan & Ors. v.Sonu Kumhar & Ors. (CIVIL APPEAL NO. 5919 OF 2011) wherein it was held as follows:
The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question.Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 21 of 23
48. Accordingly, this contention of the Plaintiffs claiming ownership on the basis of revenue entries is hereby rejected. This issue is accordingly decided in favour of the Defendants and against the Plaintiff.
49. In view of the aforesaid discussion, it appears that the plaintiff's case is nothing but a speculative attempt by taking a chance against the Defendants with the hope to succeed. The suit of a plaintiff must stand on its own two legs and it cannot derive any benefit from the weakness of the defence. Reliance in this regard is placed on decision of Hon'ble Apex Cout in Rangammal Vs. Kuppuswami and another (2011) 12 Supreme Court Cases 220 wherein it was held as follows:
"Evidence Act 1872 - S.101 - Burden lies on plaintiff to prove his case on basis of material available - He cannot rely on weakness or absence of defence of defendant to discharge the onus. If plaintiff claims title to property, he must prove his title."
50. Same was reiterated by Hon'ble Delhi HC in Devender Bhati v. Chander Kanta 2015 SCC OnLine Del 14224, wherein it was held as follows:
"37. In Harish Mansukhani (supra), the Division Bench noticed that the plaintiff has to prove his case and had to stand on his own legs. Similarly, in Ganpatlal (supra), the Madhya Pradesh High Court took note of the elementary rule of civil litigation in this country that the plaintiff must stand or fall on the strength of his own case. Thus, the failure of the defendant to establish that the market monthly rent of the suit property was not Rs.5,000/- p.m., by itself, would not amount to a proof of the plaintiffs claim of damages of Rs.5,000/- p.m."
51. The suit of the plaintiff stands dismissed owing to the failure of the plaintiff to discharge the evidentiary burden placed on him. In light of the Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 22 of 23 factual matrix of the case, no order as to costs.
52. Decree Sheet be prepared accordingly. All pending applications (if any) are hereby disposed off as not pressed.
53. File be consigned to the record room after necessary compliance.
Announced in the open (PRITU RAJ)
Court on 31 January, 2023 CIVIL JUDGE (NORTH)
ROHINI/DELHI/31.01.2023
Suit No.537581/16 Daya Chand and Anr. Vs. Harish Sehgal and Ors. Page 23 of 23