Delhi District Court
Satish vs Risal Singh on 22 April, 2025
IN THE COURT OF CIVIL JUDGE-01, WEST, TIS HAZARI
COURTS, DELHI
Presided over by- Sh. Vikas Madaan, DJS
CS SCJ No. 612093/2016 & 612643/16
Date of institution of suit : 09.03.2010
Date of reservation of Judgment : 15.10.2024
Date of pronouncement of Judgment : 22.04.2025
SUIT FOR CANCELLATION OF WILL DATED
29.08.2006 BEING FORGED AND CONSEQUENTIAL RELIEF
OF PERMANENT INJUNCTION
IN CS SCJ NO. 612093/16
Sh. Satish
S/o Late Sh. Chand Ram
R/o Village & Post Office Bakkarwala
Delhi-110041.
..............Plaintiff
Vs.
1. Sh. Risal Singh
S/o Sh. Rati Ram
R/o Village & Post Office Bakkarwala
Delhi-110041.
2. Sh. Narain Singh ( since deceased)
Through his LRs
2 (a) Sh. Ishwar Singh
2 (b) Sh. Ram Niwas
Both sons of Late Sh. Narain Singh
Both residents of
H.No. 140, V.P.O Bakkarwala, Delhi-110041
2 (c) Smt. Dayawanti
W/o Sh. Narinder
D/o Late Sh. Narain Singh
R/o H.No. A-10/1, Swarn Park
Ashok Vihar, Phase-III, Delhi-110052 Digitally
signed by
VIKAS
VIKAS MADAAN
MADAAN Date:
2025.04.22
CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 1/33 17:20:44
+0530
2 (d) Smt. Kavita Rani
W/o Sh. Sanjeev Kumar
D/o Late Sh. Narain Singh
R/o Village Akbarpur Barotha
P.O. Akbarpur, District Sonepat, Haryana
3. Sh. Jitender (Since deceased)
Through his LRs
3 (a) Sh. Deepak S/o Late Sh. Jitender
3 (b) Sh. Sandeep S/o Late Sh. Jitender
Both residents
H.No. 138, Gali No.4, Parnala Road
DharamVihar, Near Truck Union Stand
Bahadurgarh, Haryana
3 (c) Smt. Komal, W/o Sh. Shakti
D/o Late Sh. Jitender
R/o Village Bupania, District Jhajjar
Haryana-124507.
4. Sh. Paramjeet
5. Sh. Himmat Singh
6. Sh. Manjeet Singh
Defendants no. 4 to 6 are sons of Sh. Risal Singh
7. Sh. Amarjeet
8. Sh. Yogesh
Defendants no. 7 & 8 are S/o Sh. Chander Singh
Defendants no.5 to 8 are residents of
Village & Post Office Bakkarwala
Delhi-110041.
.....................Defendants
In CS SCJ NO. 612643/16
1. Sh. Risal Singh
S/o Sh. Rati Ram
R/o Village & Post Office Bakkarwala
Delhi-110041.
2. Sh. Narain Singh ( since deceased)
Through his LRs
2 (a) Sh. Ishwar Singh
2 (b) Sh. Ram Niwas Digitally signed
by VIKAS
MADAAN
VIKAS Date:
CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 2/33
MADAAN 2025.04.22
17:20:50
+0530
Both sons of Late Sh. Narain Singh
Both residents of
H.No. 140, V.P.O Bakkarwala, Delhi-110041
2 (c) Smt. Dayawanti
W/o Sh. Narinder
D/o Late Sh. Narain Singh
R/o H.No. A-10/1, Swarn Park
Ashok Vihar, Phase-III, Delhi-110052
2 (d) Smt. Kavita Rani
W/o Sh. Sanjeev Kumar
D/o Late Sh. Narain Singh
R/o Village Akbarpur Barotha
P.O. Akbarpur, District Sonepat, Haryana
3. Sh. Jitender (Since deceased)
Through his LRs
3 (a) Sh. Deepak S/o Late Sh. Jitender
3 (b) Sh. Sandeep S/o Late Sh. Jitender
Both residents
H.No. 138, Gali No.4, Parnala Road
DharamVihar, Near Truck Union Stand
Bahadurgarh, Haryana
3 (c) Smt. Komal, W/o Sh. Shakti
D/o Late Sh. Jitender
R/o Village Bupania, District Jhajjar
Haryana-124507.
4. Sh. Paramjeet
5. Sh. Himmat Singh
6. Sh. Manjeet Singh
Defendants no. 4 to 6 are sons of Sh. Risal Singh
7. Sh. Amarjeet
8. Sh. Yogesh
Defendants no. 7 & 8 are S/o Sh. Chander Singh
Defendants no.5 to 8 are residents of
Village & Post Office Bakkarwala
Digitally
Delhi-110041. signed by
VIKAS
VIKAS MADAAN
MADAAN Date:
2025.04.22
CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 3/33 17:20:56
+0530
.......Plaintiffs
Vs.
Sh. Satish
S/o Late Sh. Chand Ram
R/o Village & Post Office Bakkarwala
Delhi-110041.
..........Defendant
JUDGMENT
Vide this common Judgment, I shall decide the cases bearing no. CS SCJ No. 612093/16 and CS SCJ NO. 612643/16.
A. FACTUAL MATRIX OF SUIT BEARING NO. 612093/16
1. Brief facts of the present case as per plaint are -
(i) that the grandfather of plaintiff Late Sh. Rati Ram was the recorded Bhumidar of the agricultural land comprised in Khata Khatoni No. 357/252 Min. and 207/65 having 1/3 share out of the total land area measuring 97 bighas 19 biswas situated within the revenue estate of village Bakkarwala, Delhi (hereinafter referred to as 'suit property').
(ii) that the suit property is ancestral land and Sh. Rati Ram inherited his share from his father Late Sh. Ami Lal. The father of the plaintiff is also a co-bhumidaar in the said khata as per his share mentioned in Annexure A & B. Sh. Rati Ram dated 28.08.2009 leaving behind his three sons namely Risal Singh, Chand Ram and Narain Singh and his two grandsons Amarjeet and Yogesh sons of Late Chander Singh who was predeceased son of Rati Ram.
(iii) that after the death of father of plaintiff, the plaintiff requested defendants to exclude the alleged Will and allowed the mutation be sanctioned on the basis of inheritance as per the provisions of DLR Act but defendants particularly defendant no.1 and his sons are adamant.
(iv) that the alleged Will is a forged Will and it was never executed by Late Sh. Rati Ram. Further the suit property is ancestral land and the executant was not entitled to exclude Digitally signed by VIKAS VIKAS MADAAN CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 4/33 MADAAN Date:
2025.04.22 17:21:02 +0530 the name of the father of the plaintiff. It is further stated that the executant of the alleged Will never in his life time disclosed neither to the father of the plaintiff nor to him regarding the said execution. The plaintiff is in cultivatory possession of 1/12th share of the suit property and during the life time of the executant no one interfered in the cultivatory possession of the plaintiff.
(v) that the defendants particularly no.1 and his sons are unncessarly causing harassment and hindrance in the peaceful cultivatory possession of the share of the plaintiff on the basis of alleged forged Will which is totally illegal. Hence, the present suit has been filed by the plaintiff.
(vi) By virtue of present suit, the plaintiff has prayed for the following reliefs :
(a) That a decree in favour of plaintiff and against the defendants thereby canceling the Will dated 29.08.2006 executed by Late Sh. Rati Ram in favour of defendants in respect of the suit property i.e. 1/3 share in agricultural land comprised in Khata Khotoni no. 357/252 min., and 207/65 more specifically mentioned in Nakal Khotoni annexed alongwith the plaint as Annexure A & B situated within the revenue estate of village Bakkarwala, Delhi.
(b) That a decree of permanent injunction in favour of plaintiff and against the defendants thereby restraining the defendants, their agents, servants, etc. acting on their behalf from interfering and dispossessing the plaintiff from 1/12th share of the suit property comprised in Khata Khotoni no.
357/252 min., and 207/65 more specifically mentioned in Nakal Khotoni annexed alongwith the plaint as Annexure A & B situated within the revenue estate of village Bakkarwala, Delhi of which is in the name of Late Sh. Rati Ram.
(c) Any other relief.
2. Written statement on behalf of defendants no.1,3,4,5 and 6 wherein it is stated that Digitally signed by VIKAS VIKAS MADAAN MADAAN Date:
2025.04.22 CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 5/33 17:21:08 +0530
(i) the suit is liable to be dismissed U/s 41 (i) of Specific Relief Act, 1963 for want of interest in the suit property.
That the plaintiff has no right, title or interest of any kind in the suit property which was exclusively owned and possessed by Late Sh. Rati Ram who was absolute bhumidhar thereof in his own rights. The bhumidhari rights are the special rights created under the Delhi Land Reforms Act, 1954 (hereinafter referred to as 'the Act'), so much so that concept of Hindu Joint Family or ancestral property has been abolished by the Act. Hence, Shri Rati Ram being the bhumidhar of the suit land exclusive rights to deal with his land in any manner he liked. Therefore, shri Rati Ram was competent to bequeath his land to any one. The Will dated 29.08.2006 executed by Shri Rati Ram is a lawful and valid Will, duly registered in the office of Sub-registrar-IIA, Punjabi Bagh, New Delhi. Hence the plaintiff has no right to challenge the said Will which is a valid, genuine and legal document and has been executed by Shri Rati Ram out of his own free Will and consent and without any pressure, coercion or threat of any kind and from any corner whatsoever.
(ii) that the plaintiff is not in possession of the suit land nor he came in possession at any point of time and in any capacity whatsoever.
(iii) that the suit has not been properly valued for the purposes of court fees and jurisdiction nor proper Court fee has been paid. The market value of the suit property is more than Rs. 5,00,000/-, therefore, the suit is highly undervalued.
(iv) that the plaintiff is not in possession of the suit property/land nor ever came in possession at any point of time and in any capacity whatsoever.
Prayer is made for dismissal of suit.
B. FACTUAL MATRIX OF SUIT BEARING NO.
612643/16/12 titled as Risal Singh Vs. Satish Digitally signed by VIKAS
3. Brief facts of the present case are that - VIKAS MADAAN MADAAN Date:
2025.04.22 17:21:14 +0530 CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 6/33 (I) that the plaintiffs alongwith defendant and Sh. Sahib Singh, Randhir, Khazan Singh, Mahinder Singh and Ramphal sons of Late Sh. Tara Chand are the recorded bhumidars of joint holding of the land comprised of Khasra No. 11/19(4-
16), 11/23 (4-16),11/24 (4-16), 11/25 (4-16), 27/12 min. (3-
6), 44/13/2 (4-4), 44/14 (4-16), 44/16 (4-16), 44/17 (4-
16),44/18 (4-16), 44/19 (4-16), 44/20 (4-16),44/23 (4-
16),44/24 (4-16),44/25(4-16),30/11/1 (0-1) measuring 69 Bighas 19 Biswas of khatoni no. 357/252 min and khasra nos.
18/18 (2-6), 27/9 (4-6), 44/7/2 min. (2-16), 44/8/1 (0-3), 44/8/2/2 min. (2-14), 44/9/2 min. (2-16), 44/10/2 min. (2-16), 44/11 (4-16), 44/12 (4-16), 44/13/1(0-11) measuring 28 Bighas of Khata Khatoni no. 207/65, situated within the revenue estate of village Bakkarwala, PO Mundka, Delhi-41 total measuring 97 bighas 19 Biswas (hereinafter referred to joint holding), however the land of khasra no. 27/9 and 27/12 have been developed into plots and have been used for residential purposes since long.
(ii) that Sh. Tara Chand, Sh. Surat Singh and Sh. Rati Ram sons of Late Sh. Ami Lal were the co-bhumidars of the joint holding to the extent of 1/3rd share each. Sh. Surat Singh had died issuless on 21.01.1990 and his share in the joint holding was inherited by the sons of his two brothers namely, Sh. Tara Chand and Sh. Rati Ram in equal shares. Sh. Surat Singh had expired issueless on 21.01.1990, however Sh. Tara Chand has also left behind a Will dated 03.02.1988, by virtue of which his 1/3rd share in the joint holding has been bequeathed to the sons of his two brothers namely Sh. Tara Chand and Sh. Risal Singh in equal share and mutation to that effect has also been sanctioned in the revenue records.
(iii) that by virtue of Will of Sh. Surat Singh, plaintiff no.1 has inherited 1/24th share out of 1/3rd share of Sh. Surat Singh, which comes to 4 bighas and 2 biswas approximately.
(iv) that Sh. Tara Chand had also expired on 24.06.1999 and his 1/3rd share in the joint holding has been inherited by his five sons named in paragraph no.2, however Sh. Ramphal Digitally signed by VIKAS VIKAS MADAAN MADAAN Date:
CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 7/33 2025.04.22 17:21:20 +0530 has expired issueless, therefore his share has been inherited by his four brothers.
(v) Sh. Rati Ram, father of plaintiff no.1 and grandfather of plaintiff no.2 to 5, has expired on 28.08.2009, living behind his four sons, namely Sh. Rishal Singh (plaintiff no.1), Sh.
Chand Singh(father of defendant), Sh. Chander Singh and Sh. Narain Singh. Sh. Rishal Singh and Sh. Narain Singh are alive, whereas Sh. Chand Singh has expired on 09.1.2010 and Sh. Chander Singh has expired in the year 1996. Sh. Chand Singh is survived by his only son, Sh. Satish, the defendant herein and Sh. Chander Singh is survived by his two sons, namely Sh. Amarjit Singh and Sh. Yogesh. Sh. Narain singh also has two sons, namely Sh. Ishwar Singh and Sh. Ram Niwas.
(v) that Sh. Rati Ram has executed a Will dated 29.08.2006 which is duly registered in the office of Sub-registrar, Delhi whereby Sh. Rati Ram Bequeathed his 1/3rd share of joint holding to his sons and grandsons except Sh. Satish, defendant in the following manner:
(a) Sh. Rishal Singh (plaintiff no.1) and Sh. Narian Singh have been given land measuring 1 bighas 8 biswas each out of khasra no. 44/10/2 min.
(b) Plaintiff no.2 to 5 have been given 2/3rd share out of 1/3rd share, which comes to approximately twenty (20) bighas (c) Sh. Amarjit Singh and Sh. Yogesh sons of Sh. Chander Singh have been 1/3rd share out of remaining 1/3rd share.
(d) Sh. Ishwar and Ram Niwas sons of Narain Singh have been given 1/3rd share out of remaining 1/3rd share.
(vi) that the plaintiff no.1 was in actual physical and cultivating possession of 4 bighas 2 biswas of the joint holding being the co-bhumidhars before the death of Sh. Surat Singh and after his death he came in actual physical possession of 1 bighas 8 biswas of khasra No. 44/10/2 min.
Digitally signed by VIKAS VIKAS MADAAN CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 8/33 MADAAN Date:
2025.04.22 17:21:27 +0530 under the will of his father. Similarly the plaintiffs no.2 to 5 came in actual physical possession of 20 bighas beingco- bhumidhars of the joint holding on the strenght of the Will of their grandfather. Thus, the plaintiffs are and have become co-bhumidhars of the joint holding to the extent of land measuring 25 bighas 10 biswas approximately (hereinafter referred to as the 'suit land')
(vii) that after the death of Sh. Rati Ram, who has excluded the defendant to inherit any share out of his joint holding.
Hence, defendant never came in possession of any portion of land out of the share of Sh. Rati Ram nor he ever cultivated having no right, title or interest therein. Sh. Rati Ram being co-bhumidar of the joint holding was competent to beequeath his share of the joint holding which is governed by the Delhi Land Reforms Act and Delhi Land Revenue Act, 1954.
(viii) that the defendant has no right to question the will of Sh. Rati Ram, however he has become dishonest and has filed a false and frivolous suit against the plaintiffs and other beneficiaries under the Will i.e. sons of Sh. Narain Singh and Sh. Chander Singh for cancellation of Will of Late Sh. Rati Ram dated 29.08.2006 which was registered as Suit no. 58/2010.
(ix) that the joint holding has never been partitioned and the same is still joint and undivided, however the defendant under the garb of his joint possession thereof to the extent of his 4 bighas 2 biswas is motivated and aimed to take forcible possession of the land of joit holding on the basis of inheritance out of share of Sh. Risal Singh who has voluntarily prevented him from inheriting any land out of his holding.
(x) that after the defendant has failed to obtain any interim orders in suit no. 58/2010 titled "Satish Kumar Vs. Risal Singh & Ors." has started harassing the plaintiffs. It is further stated that on 24.06.2012, the defendant alongwith the help of his associates and two police constables came to the suit land and tried to make forcibly entry to it which is resisted by Digitally signed by VIKAS CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 9/33 VIKAS MADAAN MADAAN Date:
2025.04.22 17:21:34 +0530 plaintiffs and a call was made to police by the plaintiffs. Thereafter on 09.07.2012 at about 7.00 p.m the defendant tried to forcibly enter the suit land to cultivate the same with tractor and a complaint was made to police in this respect. It is further stated that again on 11.07.2012, the plaintiff no.1 was called to P.S. Ranhaula at 6.30 p.m on a false compliant of defendant which was already present there and plaintiff was illegally detained there till 11.00 pm and was tortured and humiliated by police there. It is further stated that again on 13.07.2012 the defendant alongwith two police personnnel came to the suit land with two tractors at about 10.00 a.m and forcibly tried to make forcible entry and when plaintiffs reached at the spot, he made a call to police. It is further stated that again on 15.07.2012 defendant alongwith his associates came to irrigate the suit land which was resisted by plaintiffs but defendant threatened the plaintiff to forcibly dispossess them there .
(xi) By virtue of present suit the plaintiff has prayed for the following reliefs :
(a) To pass a decree of permanent injunction in favour of plaintiff and against the defendant, thereby restraining the defendant and his agents from selling and or creating third party interest in the suit land froming part of joint holding of land of khasra nos.11/19(4-16), 11/23 (4-16),11/24 (4-16), 11/25 (4-16), 27/12 min. (3-6), 44/13/2 (4-4), 44/14 (4-16), 44/16 (4-16), 44/17 (4-16),44/18 (4-16), 44/19 (4-16), 44/20 (4-16),44/23 (4-16),44/24 (4-16),44/25(4-16),30/11/1 (0-1) measuring 69 Bighas 19 Biswas of khatoni no. 357/252 min and khasra nos. 18/18 (2-6), 27/9 (4-6), 44/7/2 min. (2-16), 44/8/1 (0-3), 44/8/2/2 min. (2-14), 44/9/2 min. (2-16), 44/10/2 min. (2-16), 44/11 (4-16), 44/12 (4-16), 44/13/1(0-11) measuring 28 Bighas of Khata Khatoni no. 207/65, total measuring 97 bighas 19 Biswas, situated within the revenue estate of village Bakkarwala, PO Mundka, Delhi-41.
(b) Restraining the defendants, his agents, associates, workmen, employees or any person claiming through him or Digitally signed by VIKAS CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 10/33 VIKAS MADAAN MADAAN Date:
2025.04.22 17:21:40 +0530 acting for or on his behalf from forcibly and without due process of law dispossessing the plaintiffs from the suit land measuring 25 bighas 10 biswas forming part of joint holding of Khasra Nos. 11/19(4-16),11/23 (4-16),11/24 (4-16), 11/25 (4-16), 27/12 min. (3-6), 44/13/2 (4-4), 44/14 (4-16), 44/16 (4-16), 44/17 (4-16),44/18 (4-16), 44/19 (4-16), 44/20 (4-
16),44/23 (4-16),44/24 (4-16),44/25(4-16),30/11/1 (0-1) measuring 69 Bighas 19 Biswas of khatoni no. 357/252 min and khasra nos. 18/18 (2-6), 27/9 (4-6), 44/7/2 min. (2-16), 44/8/1 (0-3), 44/8/2/2 min. (2-14), 44/9/2 min. (2-16), 44/10/2 min. (2-16), 44/11 (4-16), 44/12 (4-16), 44/13/1(0-11) measuring 28 Bighas of Khata Khatoni no. 207/65, total measuring 97 bighas 19 Biswas, situated within the revenue estate of village Bakkarwala, PO Mundka, Delhi-41 and also restraining them from interfering in the peaceful cultivatory possession and enjoyment of the plaintiffs thereof.
(c) Award the costs of the suit
(d) Any other or further order(s).
4. Written statement has been filed on behalf of defendant wherein it is stated
(i) that the plaintiffs are a greedy and dangerous lot. Plaintiffs no.2 and 3 have been already convicted to life imprisonment for murdering their real uncle (i.e. real brother of plaintiff no.1 namely Sh. Chander Singh) vide Judgment dated 28.08.2006 by Ld. ASJ in S.C. No. 14/06 titled State Vs. Risal Singh & Ors. It is further stated that plaintiff no.1 was also tried therein but was let off owing to insufficient evidence, however an appeal was filed before the Hon'ble High Court of Delhi. Also the plaintiffs have been named in FIR No. 49/2007 dated 14.05.2007 for murder Ms. Sheela (wife of plaintiff no.2).
(ii) that defendant is in sole and exclusive peaceful physical possession of the suit property since the death of his father Sh. Chand Ram i.e. 09.1.2010 who in turn was in sole and Digitally signed by VIKAS VIKAS MADAAN CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 11/33 MADAAN Date:
2025.04.22 17:21:45 +0530 exclusive peaceful physical possession of the suit property during his lifetime. It is further stated that Late Sh. Rati Ram had already divided/partitioned his property way before 1990 in four equal portions amongst his four sons i.e. plaintiff no.1 Late Sh. Chand Ram ( father of defendant ), Late Sh. Chander Singh and Sh. Narain Singh. Each of Late Sh. Rati Ram's son since the said division/partition has been in sole and exclusive peaceful physical possession of their respective portions. It is further stated that the suit property herein had fallen in the share of father of defendant and after his death to the share of defendant whereof the plaintiffs have no right, title or interest therein.
(iii) that the present suit is barred by Section 10 of Code of Civil Procedure (hereinafter referred to as 'CPC' for brevity).
The present suit relies on the alleged Will dated 29.08.2006, which is a subject matter of another suit for cancellation of Will dated 29.06.2006 being forged and consequential relief of permanent injunction bearing Civil Suit No. 58/2010, pending before this Court.
(iv) that the present suit is not maintainable in view of section 185 r/w Schedule 1 item no.4 of Delhi Land Reforms Act, 1954
(v) that the present suit is not maintainable as a joint owner cannot seek injunction against another joint owner qua a joint property that allows it to obtain sole and exclusive rights and possession to a part or whole of such joint property.
(vi) that the present suit is bad for non-joinder or necessary parties.
Prayer is made for dismissal of suit.
5. Replication has been filed on behalf of plaintiffs wherein the averments made in the pliant are reiterated and contentions raised in written statement are denied.
Digitally
C. ISSUES signed by
VIKAS
VIKAS MADAAN
MADAAN Date:
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17:21:51
+0530
6. Following issues were framed in both the suits which are hereby renumbered as follows-
( Issues involved in CS SCJ NO. 12093/16) (1) Whether the plaintiff is entitled to decree of cancellation of Will dated 29.08.2006 as prayed for ? OPP (2) Whether the plaintiff is entitled to decree of permanent injunction as prayed for ? OPP (3) Whether the suit of the plaintiff is hit by Section 185 DLR act ? OPD (4) Whether the plaintiff is guilty of suggestio falsi or supressio veri ? OPD (5) Whether the suit of the plaintiff is properly valued for the purpose of Court fees as well as the jurisdiction ? OPD ( Issues involved in CS SCJ NO. 612643/16) (6) Whether the plaintiff is entitled to decree of permanent injunction as prayed in the relief no. a ? OPP (7) Whether the plaintiff is entitled to decree of permanent injunction as prayed in the relief no. b OPP (8) Whether the suit of the plaintiff is barred Under Section 10 CPC ? OPD (9) Whether the suit of the plaintiff is hit by Section 185 DLR Act ? OPD (10) Whether the suit of the plaintiff is bad for mis-joinder of parties ? OPD (11) Relief.
7. Vide Order dated 30.05.2014, the trial of both the aforementioned cases stands consolidated. Thereafter, common evidences were led by the parties in the case titled as 'Satish Vs. Risal Singh' bearing CS SCJ No. 612093/16 (old number 58/2010). From here onwards, the parties are hereby referred by their respective title as mentioned in the main suit which is titled as 'Satish Vs. Risal Singh' bearing CS SCJ No. Digitally 612093/16 to avoid any confusion. signed by VIKAS VIKAS MADAAN CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 13/33 MADAAN Date:
2025.04.22 17:21:57 +0530 D. PLAINTIFF'S EVIDENCE
8. In order to prove his case plaintiff has examined himself as PW-1 and has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 1/A and has relied upon following documents :
Sr. No. Details of documents Exhibits 1 Nakal Khatoni Ex. PW 1/1
2. Copy of application for mutation Mark A
3. Copy of objection filed before Mark B Tehsildar
4. The certified copy of Will Ex. PW 1/5 5. Site plan Ex. PW 1/6
9. Besides himself plaintiff has examined following witnesses as under :
(i) Sh. Rajinder Singh as PW-2 who has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 2/A.
(ii) Sh. Krishan Chand as PW-3 who has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 3/A.
(iii) Sh. Lallu Ram as PW-4 who has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 4/A.
(iv) Sh. Sukhbir Singh as PW-5 who has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 5/A.
10.PWs were cross-examined by counsel for defendant no.1,3,4 and 6 (hereinafter referred as 'defendants' for brevity), thereafter vide separate statement made by counsel for plaintiff on 02.07.2018, PE was closed and the matter was listed for DE.
Digitally signed by VIKAS VIKAS MADAAN MADAAN Date:
CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 14/33 2025.04.22 17:22:02 +0530 E. DEFENDANT'S EVIDENCE
11.In defendant evidence, defendant no.1 has examined himself as DW-1 who has tendered in evidence his duly sworn in affidavit. Same is Ex. DW 1/A and has relied upon following documents :
Srl. No. Details Exhibits/
Marks
1 Certificate copy of Khatoni No. 357/252 DW-1/1
(min) of suit land for the year 2002-2003 2 Certificate copy of Khatoni No. 207/65 DW-1/2 (min) of suit land for the year 2002-2003 3 Certified copy of Death certificate of Shri DW-1/3 Surat Singh 4 Original Will dated 03.02.1988 of Shri DW-1/4 Surat Singh which is part of connected suit No. 12643 / 2016 (which is also Ex.
PW-1/DX on 06.03.2018) 5 Copy of Death certificate of Shri Tara DW-1/5 Chand (though photocopy but is exhibited as the document is admitted by the opposite party) 6 Certified copy of Death certificate of Shri DW-1/6 Rati Ram 7 Original Will of Shri Rati Ram (containing three pages) dated 29.08.2006 (already exhibited PW-1/DX-1) 8 Certificate copy of khasra girdawari of suit DW-1/7 land for the year 2009-10 (containing two pages) 9 Certificate copy of khasra girdawari of suit DW-1/8 land for the year 2011-12 (for the year is given 2010-11) in the affidavit.
10 Certificate copy of Aksh-shigra of suit land DW-1/9 for the year 1951-52 which was marked PX-1 on 06.03.2018 11 Original affidavit of Shri Narayan Singh DW-1/P-1 S/o Late Rati Ram dated 25.10.2012 12 Original affidavit of Shri Amarjeet Singh DW-1/P-2 S/o Shri Chander Singh dated 20.03.2013 13 Original affidavit of Shri Amarjeet Singh DW-1/P-3 S/o Shri Chander Singh dated 17.11.2012 14 Original affidavit of Shri Yogesh Kumar DW-1/P-4 S/o Shri Chander Singh dated 03.04.2013 Digitally signed by VIKAS CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 15/33 VIKAS MADAAN Date: MADAAN 2025.04.22 17:22:07 +0530
12.Besides DW-1, defendants have examined following witnesses -(i) Sh. Anil Kumar as DW-3 who has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 3/A.
(ii) Sh. Rajesh as DW-4 who has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 4/A.
(iii) Sh. Naveen Kumar as DW-5 who has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 5/A.
(iv) Sh. Praveen Kumar Rana, UDC, office of sub-registrar-1, Kashmiri Gate, New Delhi as DW-7 who had deposed that the summoned record was not available with his office at Sub- Registrar-I, District Central, Old Court Building, Kashmere Gate, Delhi as the same has been transferred to Department of Delhi Archives, Govt. of NCT of Delhi, 18-A, Satsang Vihar Marg, Special Institutional Area, New Delhi and he had brought the letter of the Sub-Registrar-I dated 27.07.2018 which bears the signatures with seal at point A and the same is Ex. DW-7/1.
(v) Sh. Anup Singh, Record Keeper, Office of Sub-Registrar- II, Kashmere Gate, New Delhi as DW-8 who had brought the summoned record of the Will dated 03.02.1988 of Shri Surat Singh S/o Shri Ami Lal, R/o Village Bakkarwala, Delhi registered at with the office of Sub-Registrar-II, Kashmere Gate vide registration No. 3466 in additional book No. III volume No. 663, page No. 66 to 67 dated 03.02.1988 and the same is exhibited as Ex. DW-8/A (OSR) and has also verified the the original Will from the record of CS No. 12643/16 titled as Shri Risal Singh and others Vs. Satish Singh with the original record brought by me and stated that the same is correct according to their record and is already exhibited as PW-1/DX.
(vi) Sh. Pawan Kumar, Kanoongo, office of SDM Patel Nagar, Rajouri Garden, New Delhi as DW-9 who has brought Digitally signed by VIKAS VIKAS MADAAN CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 16/33 MADAAN Date:
2025.04.22 17:22:12 +0530 the Khatoni No. 207/65 and Khatoni No. 357/252 min of Village Bakkarwala, Delhi for the year 2002 - 03 and same are Ex. PW-9/A (OSR) and Ex. PW-9/B (OSR) and has also brought the summoned record of khasra girdawari pertaining to the above said khatonis for the year 2007 to 2014 and the same are exhibited as Ex. PW-9/C(Colly) running into 81 pages (OSR).
(vii) Sh. Vipin, Bank of Mahrashtra, Baprola Branch, Delhi as DW-10 who has brought the summoned record i.e. the bank account opening form alongwith customer information form, nomination form, election I/Card, Ration Card and statement of accounts. Same are exhibited as Ex. DW-10/A (colly) (containing 22 pages) and the certificate is Ex.
DW-10/B.
(viii) Sh. Sevajit, Record Attendant, office of Department of Delhi Archives, 18-A, Satsang Vihar Marg, Spl. Institutional Area, New Delhi - 110 067 who has brought the Will dated 03.02.1988 executed by Shri Surat Singh S/o Ami Lal vide registration No. 3466, Book No. 3, Volume No. 663, Pages 66 to 67 registered on 03.02.1988 and stated that summoned record is not available with our department as the same is with the office of Sub Registrar-II, Kashmere Gate, Delhi.
13.DWs were cross-examined, thereafter vide separate statement made by counsel for defendants, DE was closed and thereafter the matter was listed for final arguments.
14.I have heard final arguments advanced by Ld. counsel for parties and perused the record and also perused the written submissions filed by defendants.
F FINDINGS 15.ISSUE No. 1 Whether the plaintiff is entitled to decree of cancellation of Will dated 29.08.2006 as prayed for? OPP Digitally signed by VIKAS CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 17/33VIKAS MADAAN MADAAN Date:
2025.04.22 17:22:17 +0530 The onus to prove the said issue was upon the plaintiff.
Arguments of the plaintiff
16.It is contended by the Ld. counsel for the plaintiff that it is a settled law that before caveator proved other grounds to disprove the will, it is the duty of the propounder of the Will to first prove the existence and execution of the Will in view of section 63 of the Indian Succession Act, 1925 and section 68 of IEA. It is further contended that as defendants have failed to call any one of the attesting witnesses to the Will in question, plaintiff need not require to prove any other suspicious circumstances beforehand. It is thus contended that the present issue stands decided in favour of the plaintiff.
17.The Ld. counsel for the plaintiff has relied upon the following judgments in support of his contentions:
a. Anil Rishi vs Gurbaksh Singh1, b. Krishan Dass Gupta vs State and Ors2, c. Savithri and ors vs Karthyayani Amma and Ors3, d. Vikram Chopra vs. State and Ors.4, e. Promila Kapoor vs. Inder Mohan Nagpal and Ors.5, f. O.P Sharma and Ors. Vs. Kamla Sharma and Ors.6, g. Santosh Yadav vs Jaswant Singh and Ors.7, h. Meena PArdhan & Ors. Vs. Kamla Pardhan & Anr8, i. Raj Kumari and others vs. Surinder Pal Sharma9, j. Derek A C Lobo & Ors. Vs Ulric M A Lobo (dead) by Lrs. & ors10., Arguments of the defendants 1 Appeal (civil) 2413 of 2006, decided on 02.05.2006 22012:DHC: 1107 3 AIR 2008 SC 300 4 (2009) ILR Supp. Delhi 107 5 2022:DHC:4815 6 2009(81) AIC 381 7 MANU/DE/3085/2024 8Civil Appeal No. 3351 of 2015 9 Civil Appeal No. 9683 of 2019 Digitally 10 Civil appeal no. 5094 of 2011 signed by VIKAS VIKAS MADAAN CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 18/33 MADAAN Date:
2025.04.22 17:22:23 +0530
18.Per contra, it is contended by the Ld. counsel for the defendants that initial burden of proof that the Will in question is a forged will, is on the plaintiff in view of section 101 of the Indian Evidence Act, 1972 (hereinafter referred to as 'IEA', for brevity) and in terms of section 102 of the IEA, the initial onus is on the plaintiff and if he discharges that onus and makes out a case, which entitles him to a relief, then onus shifts to the defendant to prove the circumstances, which disentitles the plaintiff of the same. It is further argued that plaintiff has failed to lead any evidence which can prove that the will in question is a forged or that Late Sh. Rati Ram had no right to execute the same. It is further contended that though plaintiff has pleaded that the will in question if forged, however, plaint is conspicuously silent regarding the nature of alleged forgery or fraud being played by the answering defendants. Thus, it is contended that the present suit is not maintainable for want of specific pleadings and material facts regarding commission of alleged fraud in view of Order VI Rule 2 and 4 of CPC. It is further contended that even the plaintiff has failed to prove by his oral testimony as PW-1 as there are material contradictions in the examination in chief and cross-examination of plaintiff. It is further contended that plaintiff is not a reliable witness and his testimony is suffering from material discrepancies and as such, his testimony cannot be relied. It is further contended that prayer as made in the prayer clause is not in consonance with the allegations made in the plaint.
19.Ld. counsel for defendants has relied upon the following judgments to buttress his submissions:
k. Nathu vs. Hukum Singh and ors11, l. Har Narain Devi & anr vs. Union of India & ors.12, m. Ramehswari Devi and ors. Vs. Nirmal Devi and Ors.13, 11 (1982) DLT 219 12 2022 LiveLaw (SC) 783 Digitally signed by 13 (2011) SLT 196 VIKAS VIKAS MADAAN MADAAN Date:
CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 19/33 2025.04.22 17:22:29 +0530 n. Baldev Singh vs. Shinder Pal Singh and ors.14, o. Union of India vs. Ibrahim Uddin & anr15, p. Kayalulla Parambath Moidu Haji vs. Namboodiyil Vinodan16, q. Kashi Nath (dead) through LRs vs. Jaganath17, r. Biraj @ Brijraji vs. Surya Pratap and Ors18, s. Bachhaj Nahar vs. Nilima Mandal and another19, t. Prakash Rattan Lal vs. Mankey Ram20, u. Doctor Morepen Ltd. and anr vs. Poysha Power Generation P. Ltd.21, COURT'S OBSERVATION
20.In Jaswant Singh vs. Sucha Singh22, it is, interalia, observed by the Hon'ble Punjab and Haryana High Court that:
" ...The learned counsel for the petitioner contends that since the defendant contends that the Will is a forgery, the burden of proving that the Will is a forgery or fabricated is on the defendant. The contention is untenable. A contention that a Will is forged or fabricated has the effect of denying the genuineness and being fundamental to rule of evidence, the burden of establishing the genuineness is only on the plaintiff under Section 68 of Evidence Act. This will be so, even if there is no denial by the defendant. The denial of a Will as initiated by fraud, undue influence or coercion is wholly different, in which situation, the burden of proving such fraud shall be on the person who sets up a litigating circumstance. This difference in approach is exposited by the Supreme Court in the decision in Bharpur Singh v. Shamsher Singh (2009) 3SCC 687.."
(emphasis supplied) 14 JT 2006 (9) SC 442 15 (2012) SLT 461 16 Civil Appeal No. 5575-5576 of 2021 17 Appeal (civil) 6974 of 1996 18 AIRonline 2020SC 806 19 (2008) 09 SC CK 0039 20 2010 (166) DLT 629 21 CS(OS) 1276/2005 22 CR NO. 2881 of 2012 (O&M) Digitally sign by VIKAS CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 20/33 VIKAS MADAAN MADAAN Date:
2025.04.22 17:22:35 +05
21.Similarly, the Hon'ble Apex Court in Bharpur Singh vs. Shamsher Singh23, has observed that:
"11. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions contained in clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the Will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator.
12. This Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma [AIR 1959 SC 443] opined that the fact that the propounder took interest in execution of the Will is one of the factors which should be taken into consideration for determination of due execution of the Will. It was also held that one of the important features which distinguishes Will from other documents is that the Will speaks from the date of death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. It was also held that the propounder of will must prove:
(i) that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii) when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, Courts would be Digitally 23 (2009) 3 SCC 687 signed by VIKAS CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 21/33 VIKAS MADAAN MADAAN Date:
2025.04.22 17:22:40 +0530 justified in making a finding in favour of propounder, and
(iii) If a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion.
In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein.
It was moreover held:-
"20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such Digitally CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 22/33 signed by VIKAS VIKAS MADAAN MADAAN Date:
2025.04.22 17:22:51 +0530 legitimate doubts in the matter."
13. This Court in Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao & ors. [2006 (14) SCALE 186], held:
"33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.
34. There are several circumstances which would have been held to be described (sic) by this Court as suspicious circumstances:
(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.
[See H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. AIR 1959 SC 443 and Management Committee T.K. Ghosh's Academy v.
T.C. Palit and Ors. AIR 1974 SC 1495]"
Digitally CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 23/33 signed by VIKAS VIKAS MADAAN MADAAN Date:
2025.04.22 17:22:56 +0530
17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:
i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time. iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
iv. The dispositions may not appear to be the result of the testator's free will and mind.
v. The propounder takes a prominent part in the execution of the Will.
vi. The testator used to sign blank papers. vii. The Will did not see the light of the day for long. viii. Incorrect recitals of essential facts.
18. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the Will had duly been proved or not.
It may be true that the Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the Will need not be complied with".
(emphasis supplied)
22.A conjoint study of the aforementioned judgments makes it explicitly clear that where a Will has been challenged on the basis of forgery, or misrepresentation, or fraud then the onus to prove the same lies upon the person who adduced the same. However, when a contention that a Will is forged or fabricated is raised, it has the effect of denying the very existence and genuineness of the Will and being fundamental to rule of evidence, the burden of establishing the genuineness is only on the propounder of the Will under Section 68 Indian Evidence Act,1872 and section 63 of Indian Succession Act, 1925 (hereinafter referred to as 'ISA' for brevity). Digitally signed by VIKAS CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 24/33 VIKAS MADAAN MADAAN Date:
2025.04.22 17:23:01 +0530
23.In the instant case, the plaintiff has taken two different stands in respect of Will in question. First, that the Will in question was not executed by Late Sh. Rati Ram and it is a forged Will. Second, Late Sh. Rati Ram did not have the capacity to execute the Will in question as the suit property is ancestral land and he was not entitled to exclude the name of the father of the plaintiff. Since the plaintiff has challenged the very existence of the Will in question on the basis of forgery, thus in view of the aforementioned dictum, now the onus to prove existence of the Will and that it was executed by the testator is upon the defendants. If defendants will succeed in establishing the Will in question, then the onus to prove the forgery will shift upon the plaintiff.
24.Section 63 of the Indian Succession act, 1925 provides that-
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:--
(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c)The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same Digitally CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 25/33 signed by VIKAS VIKAS MADAAN MADAAN Date:
2025.04.22 17:23:06 +0530 time, and no particular form of attestation shall be necessary.
25.Thus, as per Section 63 of the ISA, the execution of the Will can only be proved by calling one of the attesting witness who has seen the testator signing the Will. In the instant case, defendants have not examined any of the attesting witness to the Will in question. Similarly, it has not been proved by the defendants that both the attesting witnesses are dead or they are not subject to the process of this Court or incapable of giving evidence. Thus, none of the conditions as prescribed U/s 63 of ISA has been complied by the defendants. It is a trite law that mere proving the signature of the testator shall prove the Will and similarly, it is a trite law that mere registration of a Will is not sufficient and the propounder of the Will must establish the Will as per the conditions mentioned in Section 63 of ISA read with Section 68 of IEA. Consequently, the defendants have failed to discharge the onus placed upon them to prove the execution of the Will. As the defendants have failed to do the needful, the plaintiff is also not required to discharge any burden placed upon him. Ergo, in view of the same, the Will in question stands not proved and hence, the Will in question shall stands cancelled.
Consequently, the present issue stands decided in favour of the plaintiff and against the defendants.
26.ISSUE No. 2 & 42. Whether the plaintiff is entitled to decree of permanent injunction as prayed for?
4. Whether the plaintiff is guilty of suggestion falsi or supressio veri?
Onus to prove Issue no.2 was upon the plaintiff and the onus to prove Issue no.4 was upon the defendant.
27.The plaintiff has prayed that a decree of permanent injunction Digitally signed by VIKAS VIKAS MADAAN CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 26/33 MADAAN Date:
2025.04.22 17:23:12 +0530 be passed in his favour and against the defendants to restrain the defendants, their agents etc. not to interfere and dispossess the plaintiff from 1/12th share of the suit property comprised in Khata Khatoni No. 357/252 Min., and 207/65 as mentioned in nakal khatoni which is in the name of Late Sh. Rati Ram.
28.It is a trite law that for obtaining a permanent injunction, a proper identification of the property is crucial. It must be of paramount importance that there shall a clear and unambiguous identification of the property in dispute to ensure that any order made can be effectively executed. By clear identification of a property, it is ensured that injunction is directed at the specific property in dispute, protecting the rights of both the plaintiff and the defendant. Without proper identification, the injunction could be unenforceable or could lead to confusion and disputes.
29.It is averred by the plaintiff in his plaint and evidence by way of affidavit that after death of Mr. Rati Ram, his share in the suit property was to be divided into four equal shares by his three sons and legal heirs (grandsons) of his one pre-deceased son. It is further averred that property of Late Mr. Rati Ram had in fact been divided already during his lifetime into four equal shares between his said four sons, who all were in exclusive cultivator possession as per their respective shares to the exclusion of all others. The father of the plaintiff was in cultivator possession of 1/4th share out of 1/3rd share of Late Mr. Rati Ram (1/12th share) and now plaintiff is entitled, through his father, to 1/12th share and he has been in the exclusive physical possession since a long time.
30.It is pertinent to note that plaint and the evidence affidavit is conspicuously silent about the dimensions of the property which plaintiff averred that is in his possession. Similarly, plaint is conspicuously silent about the location and co-
ordinates of the property which is in his possession. Similarly, Digitally
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plaintiff did not aver that in which khasra or khewat number, his share is situated or whether his property is situated in patches in the entire khewat as per Ex. PW1/1. During his cross-examination, he deposed that he cannot tell in which khasra land was given by Rati Ram to his sons. Again said, which portion of land was in possession of Rati Ram, he did not know. It is also admitted by him that he did not know how much area was cultivated by him. He also deposed that he did not know about khasra girdwarai of actual land cultivated by him. During his further cross-examination, he deposed that he did not cultivate land of any particular khasra of the disputed land. He further deposed that even his father has never cultivated the disputed land personally after death of his grandfather. He also deposed that he personally never cultivated the disputed land after death of his father.
31.Since the plaintiff has not been able to show that which of the area of the entire property is in his cultivatory possession, therefore this Court cannot grant the decree of permanent injunction in his favour as any such decree will remain unexecutable in absence of any specific dimensions. Thus, plaintiff is not entitled for the equitable relief of injunction.
Therefore, this Issue is accordingly decided against the plaintiff and in favour of defendants.
32.ISSUE NO. 3Whether the suit of the plaintiff is hit by section 185 DLR Act?
The onus to prove the same was upon the defendants.
33.It is argued by the Ld. counsel for the defendants that plaintiff had claimed the suit property as ancestral land, however, he has not sought any declaration to that effect from the competent court nor he has challenged the bhumidari of Late Sh. Rati Ram with regard to the suit land in the revenue Digitally signed by CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 28/33 VIKAS VIKAS MADAAN MADAAN Date:
2025.04.22 17:23:21 +0530 courts, which is a competent court to grant the said relief.
34.Section 185 of the Delhi Lad Reforms Act, 1954 (henceforth 'DLR Act', for brevity) provides that:
Cognizance of suits, etc, under this Act.
(1)Except as provided by or under this Act no court other than a court mentioned in column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof.
(2)Except as hereinafter provided no appeal shall lie form an order passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid. (3)An appeal shall lie from the final order passed by a court mentioned in column 3 to the court or authority mentioned in column 8 thereof. (4)A second appeal shall lie from the final order passed in an appeal under sub section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid.
35.In the instant case, the plaintiff has filed the suit for seeking cancellation of the Will in question and for seeking permanent injunction against the defendants. Ld. counsel has failed to quote the relevant entry of Schedule I to DLR Act, in which the case of the plaintiff would fall so as to barred the jurisdiction of this Court. A bare perusal of Schedule I shows that in entry 28, a declaratory suit under section 104 of DLR Act can be filed before the Revenue Assistant. However, only Gram Sabha has the right to file a suit for declaration under section 104 of the DLR Act. Thus, the suit of the plaintiff cannot be covered under section 104 of the DLR Act. Apart from this, there is no other entry provided in the schedule I wherein the jurisdiction of the civil court has been expressly barred to try and entertain the suit for cancellation of will and permanent injunction. Thus, defendants have failed to discharge the initial onus placed upon them. Accordingly, this Digitally signed by VIKAS CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 29/33 VIKAS MADAAN MADAAN Date:
2025.04.22 17:23:27 +0530 issue stands decided against the defendants.36.ISSUE NO. 5
Whether the suit of the plaintiff is properly valued for purpose of Court fee as well as the Jurisdiction?
The onus to prove the same was upon the defendants.
37.It is argued by the Ld. counsel for the defendants that plaintiff has sought the cancellation of the Will in question with regard to his 1/3rd share in the joint holding of land measuring 97 bighas 19 biswas. It is contended that the value of the suit land at the time of filing of the suit was not less than five crores but the plaintiff has valued the suit for relief of cancellation and injunction as fixed, which is illegal. It is further argued that the present suit is undervalued and proper ad-volrem court fee has not been fixed on the market value. It is further argued that in Delhi, Government has fixed the minimum rate of agricultural land @ 56,00,000/- per kila. It is, thus, contended that neither the suit has been valued properly nor the proper court fees has been paid. Moreover, this Court has no pecuniary jurisdiction to try the present suit.
38.In the instant case, the plaintiff has sought the relief of cancellation of a Will and of permanent injunction. Ld. counsel for defendants have failed to quote that as per which provision of the Court Fees Act, 1870 the suit of the plaintiff is covered where the plaintiff is required to pay ad valorem fees on the value of minimum rate of agricultural land. The onus to prove the same is upon the defendant but the defendant has failed to do so.
Accordingly this issue also stands decided against the defendants.
Digitally
FINDINGS ON ISSUES AS FRAMED IN CS SCJ NO. signed by
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612643/16
39.ISSUE NO.6 , 7 and 10
(6) Whether the plaintiff is entitled to decree of permanent injunction as prayed in the relief no. a ?
(7) Whether the plaintiff is entitled to decree of permanent injunction as prayed in the relief no. b (10) Whether the suit of the plaintiff is bad for mis-joinder of parties ?
The onus to prove Issue no. 6 and 7 was upon the defendants and Issue no. 10 was upon the plaintiff.
40.Perusal of the prayer clause (a) shows that the defendants have asked the relief of permanent injunction against the plaintiffs for the entire property i.e. 97 bighas 19 biswa which is situated in Khatoni no. 357/252 min. and in Khatoni No. 207/65. It is the case of the defendants that his grandfather Rati Ram was the bhumidhar of 1/3rd of the entire property. Therefore, the defendants are not having any right or title or interest in the entire property and therefore without impleading the owners/sharers of the remaining property, the plaintiff is not entitled to sought permanent injunction against the plaintiff. Thus, the suit of the defendants is bad for the non-joinder of necessary parties. It is also pertinent to note that it is the case of the defendants that they are in the possession of 25 Bighas and 10 Biswa land out of the entire property but the defendants have failed to provide any such dimensions or demarcation of the said property which is in their possession in order to identify which property belongs to the defendants. Moreover, in light of Issue no. 1 as discussed above, the Will in question has stand cancelled and therefore, the defendants cannot assert their right on the basis of said Will in any area of the entire property. Therefore, the reliefs of injunction cannot be granted in favour of the defendants.
Consequently, the Issue no. 6 and 7 stands decided against the defendants and Issue no. 10 stands decided in favour of the Digitally signed by VIKAS VIKAS MADAAN CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 31/33 MADAAN Date:
2025.04.22 17:23:38 +0530 plaintiff.41.ISSUE No. 8
Whether the suit of the plaintiff is barred Under Section 10 CPC ?
The onus to prove this Issue was upon the plaintiff.
42.Since the trial of both the suits have been consolidated, this Issue become infructuous and therefore there is no need for its adjudication.
This Issue stands decided accordingly.
43.ISSUE NO. 9Whether the suit of the plaintiff is hit by Section 185 DLR Act ?
The onus to prove this Issue was upon the plaintiff.
44.As discussed in Issue No.3, like defendants, the plaintiff has also not quoted any relevant section or entry in Schedule 1 to the DLR Act, in order to show that the present suit falls not under the jurisdiction of the Civil Court. The only contention of the plaintiff is that without having any possessory or tenancy rights, the defendants are seeking protection from trespassing and thereby they are seeking the declaration of their bhumidhari rights which is not permissible and Civil Courts have no jurisdiction to do the same. The defendants were claiming themselves as the owner of 25 bigha and 10 biswa land on the basis of Will in question at the time of filing of suit. It is a trite law that a person can protect his possession over a property if he is facing any kind of threat over his possession. Thus, the defendants have every right to approach the Civil Courts for the said purpose. Consequently, this Court finds no merits in the contentions of the counsel for plaintiff. Accordingly, this Issue also stands decided against Digitally signed by VIKAS CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 32/33 VIKAS MADAAN MADAAN Date:
2025.04.22 17:23:43 +0530 the plaintiff.
G. RELIEF
45.In view of aforementioned findings on issues and observations, the suit of the defendants stands dismissed and the suit of the plaintiff stands partly decreed with the following reliefs :
(a) Will dated 29.08.2006 executed by Late Sh. Rati Ram in favour of defendants in respect of the suit property i.e. 1/3 share in agricultural land comprised in Khata Khotoni no.
357/252 min., and 207/65 situated within the revenue estate of village Bakkarwala, Delhi, hereby stands set aside and stands cancelled.
(b) No order as to costs.
46.Decree sheet be prepared accordingly.
47.Both the files be consigned to Record Room after due compliance.
Digitally
signed by
VIKAS
VIKAS MADAAN
MADAAN Date:
2025.04.22
PRONOUNCED IN THE 17:23:49
+0530
OPEN COURT TODAY
22.04.2025 (VIKAS MADAAN)
Note: This judgment contains CIVIL JUDGE-01, WEST, 33 pages and each page is TIS HAZARI COURTS, signed by the under signed. DELHI CS SCJ No.612093/2016 Satish Vs. Risal Singh pages 33/33