Delhi District Court
Cs No. 97429/17 Phool Singh vs . Pushp Lata Gupta Page 1 Of 21 on 11 December, 2019
IN THE COURT OF SH. VIPIN KHARB
SCJCUMRC (CENTRAL), TIS HAZARI COURTS, DELHI
CS No. 97429/16
In the matter of :
1. Phool Singh
Through his legal heirs (since deceased)
(I) Ram Kishan (son)
(II) Hari (Son
(III) Krishan Pal (since deceased) (son)
a) Smt. Birmati (wife)
b) Jaibir (son)
c) Ankit (minor son)
d) Jyoti (minor daughter)
(both c & d being minors are represented through their mother).
(IV) Raju (son)
All Residents of Village Burari, Delhi 110084
(V) Smt. Krishna (daughter)
W/o Sh. Jai Bhagwan
R/o Palam Colony, Delhi.
(VI) Smt. Vimla (daughter)
W/o Sh. Raghubir
R/o Palam Colony, Delhi.
(VII) Smt. Simla (daughter)
W/o Sh. Suresh
R/o Sultanpur, Near Mehrauli
New Delhi.
2. Daya Ram
S/o Late Sh. Mannu
R/o Village Burari, Delhi84.
CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 1 of 21
3. Banwari
4. Lakhmi
5. Mai Chand
All Sons of Late Smt. Indira
All Residents of Village P.O. Jharoda Kalan, New Delhi.
...... Plaintiff.
Vs.
1. Ms. Pushp Lata Gupta
W/o Sh. R.C. Gupta
2. R.C. Gupta
Both R/o 7315, Gali No. 2
Prem Nagar, Shakti Nagar
Delhi 110007.
3. Kali Charan
S/o Late Sh. Gobind Sahai
R/o Village Burari, Delhi 110084.
...... Defendants
4. Jawahar
5. Mehar
Both Sons of Late Smt. Chameli
Both Residents of V.P.O. Dichaon Kalan, New Delhi.
......Performa Defendants.
SUIT FOR DECLARATION & PERMANNENT INJUNCTION
Date of Institution : 01.06.2006
Date of reserve for judgment : 11.12.2019
Date of pronouncement : 11.12.2019
CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 2 of 21
JUDGEMENT
1. Facts of the plaint in the nutshell are that Late Sh. Tek Chand was owner of khasra no. 97/18, measuring 416, situated in the revenue estate of village Burari, Delhi (hereinafter referred as 'the suit property'). Sh. Mannu, Smt. Indira and Smt. Chameli (all deceased) were children of Late Sh. Tek Chand and have one third share in the suit property left behind by Late Sh. Tek Chand. Plaintiff no. 1 & 2 are the sons of Late Sh. Mannu. Plaintiff no. 3 to 5 are sons of Late Smt. Indira. Defendant no. 2 & 4 are sons of Late Smt. Chameli. Sh. Mannu, father of plaintiffs no.1 & 2 expired in the year 2002 and after his death, plaintiff no.1 & 2 moved an application for mutation of their shares in the suit property in the office of Tesildar, Civil Lines vide Diary No. 1948/THE/CL dated 19.07.2004. The Tehsildar instead of mutating their names, sent a letter/summons to them intimated about a case titled as "Pushp Lata Gupta Vs Tehsildar Civil Lines" pending regarding the suit property. Plaintiff no.1 and 2 moved an application U/O 1 Rule 10 read with Sec. 151 CPC for impleading them as necessary parties. But during the pendency of said case, defendant no. 1 & 2 with the help and in connivance of local police trespassed into a portion of 02 bighas and 04 biswas of the suit property in an unlawful and illegal manner and police did not lodge any complaint. They sent their complaint through Fax to Commissioner of Police, Delhi but till date, police has not taken any action against culprits.
CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 3 of 212. During pendency of the above mentioned case, plaintiffs came to know regarding existence of two sale deeds dated 19.02.1988 and 23.10.1989 and applied for certified copy of the sale deeds. After getting the same, plaintiffs came to know that sale deed dated 19.02.1988 bears forged and fabricated thumb impression of their father i.e. Late Sh. Mannu and as per the sale deed, suit property was sold to Kali Charan (defendant no.3). At the time when sale deed was executed, Late Sh. Mannu was only having one third share in the suit property and remaining two third share of the suit property belongs to plaintiff no. 3 to 5 and defendant no. 4 & 5, therefore, alleged sale deed is null and void. Later on, on the basis of sale deed dated 19.02.1988, defendant no.3 executed a sale deed dated 23.10.1989 in favour of defendant no. 1 and the same is also null and void as it is based on sale deed dated 19.02.1988. Both the sale deeds also contravenes the provisions of Sec. 33 of DLR Act.
3. After taking illegal possession of part of suit property measuring two bighas and four biswas, defendant no.1 got entries made in the khasra girdawari for the year 20052006 wherein it has been registered that Smt. Pushp Lata is in illegal possession of 2 bigha 4 biswas out of total area of 4 bighas and 16 biswas. Further, defendant no.1 and 2 with the help of local police are conspiring to create third party interest in the said part of suit property. Based on said averments, plaintiff filed present suit in which he prayed to pass a decree of declaration thereby CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 4 of 21 declaring the sale deed dated 19.02.1988 registered at Book No. 2268 and vol. no. 5526 from pages 61 to 63 and sale deed dated 23.10.1989 registered at Book No. 11318 and vol no. 6219 from pages 54 to 57 as null and void and of no legal consequences and also declaring all other documents executed by the defendant no.1 and 3 in pursuance of these two sale deeds as null and void and of no legal consequences and to pass a decree of permanent injunction against the defendants no.1 to 3, their associates, agents, representatives, servants, thereby restraining them to create any third party interest in the property measuring 2 bighas 4 biswas as shown in red colour in the site plan and to Award the cost of the suit in favour of plaintiffs and against the defendants.
4. Defendant no.1and 2 filed written statement jointly in which they took preliminary objections viz. that sale deed sought to be declared null and void were executed way back in the year 1988 and 1989, thus challenge to the due execution thereof is barred by law of limitation. Late Sh. Mannu S/o Tek Chand executed sale deed of suit property in favour of Kalicharan on 19.02.1988 and the same was registered with the SubRegistrar Delhi. Part of suit property i.e. area measuring 02 bigha 02 biswa was sold by Kalicharan to defendant no.1 and defendant no.2 vide sale deed dated 23.10.1989 and for that NOC was taken from Tehsildar, Delhi. Defendant no.1 moved an application for mutation on 06.07.2000 for mutation of said piece of land. Since said land has not been mutated in favour of defendant no. 3 Sh. Kalicharan, CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 5 of 21 therefore, defendant no. 3 also moved an application for mutation of the land purchased by him but same was disallowed vide order dated 28.08.2000. Defendant no.1 again moved an application for mutation in her favour before Tehsildar on 27.03.2001 for mutation of one third share of suit property for which Late Sh. Mannu had title, and Late Sh. Mannu transferred his 1/3rd share in favour of Sh. Kalicharan, as it was the basic ground of objection and rejection of mutation application by Naib Tehsildar in its order dated 28.08.2000. Thereafter, they approached Smt. Chameli Devi for execution of proper sale deed in respect of said remaining portion by way of sale deed dated 29.03.2001 but the said application was also rejected by Tehsildar vide order dated 16.04.2001.
5. No Written Statement was filed by defendant no. 3 despite giving sufficient opportunities. Therefore, vide order dated 04.12.2007, defendant no. 3 was proceeded exparte.
6. Defendant no.4 and 5 filed written statement in common in which they admit the case of plaintiffs.
7. In response to the written statement of defendant no. 1 and 2, plaintiffs filed replication in which they refuted the version of defendants and reiterated their version as mentioned in plaint. Contents of same are not repeated here for the sake of brevity.
CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 6 of 218. After completion of pleadings, following issues were settled by the court on 18.09.2008.
(i) Whether the plaintiff has no cause of action to file the suit against the defendant no.1 and 2? OPD
(ii) Whether the suit is barred by law of limitation ? OPD
(iii) Whether the plaintiff is entitled to decree of declaration as prayed for ? OPP
(iv) Whether the plaintiff is entitled to decree of permanent injunction, as prayed for? OPP
(v) Relief.
9. Matter was then fixed for plaintiff's evidence.
10. Before plaintiff could have examined himself, he expired. His son namely Ram Kishan examined himself as PW1 and tendered in evidence his affidavit Ex.PW1/A in which he reiterated the facts as mentioned in the plaint. Same needs no repetition. He relied upon documents viz; Ex.PW1/1 to Ex.PW3, Ex.PW1/7, Ex.PW1/9 to Ex.PW1/13 and 'Mark A to Mark G'.
11. In this case, vide order dated 20.12.2012, Local Commissioner namely Ms. Divya Singh, was appointed for recording of evidence of witnesses.
CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 7 of 2112. Sh. Mokhtar Mahato, Record Keeper, SubRegistrarII, Kashmere Gate, Delhi, was examined as PW2. ASI Kulbeer Singh, office of Joint CP, Central Range, Delhi was examined as PW3 and relied upon document Ex.PW3/1. Sh. Jagdeep Singh, Halka Patwari, Village Burari, Delhi was examined as PW4 and relied upon document Ex.PW4/1. HC Ranbir Singh, Complaint Branch, Delhi Police was examined as PW5. HC Jitendra Singh, from PS Timar Pur, Delhi was examined as PW6 who relied upon document Ex.PW6/A. Sh. R.K. Singh, LDC from the office of Deputy Com. Central was examined as PW7. Lastly, Sh. Ramesh Chand, Kanoongo from SDM Civil Lines, Delhi, was examined as PW8 who relied upon document Ex.PW8/A.
13. Thereafter, vide order dated 17.09.2015, plaintiff's evidence was closed and matter was fixed for defendant's evidence.
14. Defendants have examined Dr. Joginder Bhardwaj as DW1 who tendered in evidence his affidavit Ex.DW1/A and relied upon documents viz. Ex.DW1/1 to Ex.DW1/8. Smt. Geeta was examined as DW2 who tendered in evidence her affidavit Ex.DW2/A. Sh. Acharya Deepak Kishore Kandpal was examined as DW3 who tendered in evidence his affidavit Ex.DW3/A. Sh. Vinod Kumar Thapliyal was examined as DW4 who tendered in evidence his affidavit Ex.DW4/A. Sh. Rakesh Kumar, Ahlmad in Court of Sh. Pawan Kumar, Ld. MM 02, Central District, THC was examined as DW5 who relied upon the CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 8 of 21 report Ex.DW5/1. Sh. Vinod Kumar Pandey, Halka Patwari, Burari, Delhi, was examined as DW6, HC Sukesh, PS Timarpur, was examined as DW7 and relied upon document Ex.DW7/1. Sh. Deepak Jain, Handwriting & Finger Print Expert was examined as DW8 who tendered in evidence his affidavit Ex.DW8/A who relied upon documents viz. Ex.DW8/1 and Ex.DW8/2 (colly). Lastly, Sh. Joginder Bhardwaj was examined as DW9 who is the SPA of defendant no. 1 (Pushp Lata Gupta) and closed his evidence vide separate statement on 25.07.2019.
15. Matter was then fixed for final arguments.
16. After hearing final arguments, matter was reserved for pronouncement of judgement.
17. In my subsequent paragraphs, Court will be dealing with the Suit issuewise. Since, issue no. 3 and 4 pertains to the crux of the present controversy, therefore, Court have dealt with the said issues first.
ISSUE NO. 3 & 4.
Whether the plaintiff is entitled to decree of declaration as prayed for ? OPP & Whether the plaintiff is entitled to decree of permanent injunction, as prayed for? OPP CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 9 of 21
18. Both the issues are taken up together as they are interrelated and onus to prove both the issues was on the plaintiffs.
SALE DEED NOT VOID IN LIGHT OF SEC. 43 & 44, TPA, 1882
19. The relief of declaration has been claimed by plaintiffs contending that the sale deed dated 19.02.1988 is void as at the time of execution of aforesaid sale deed dated 19.02.1988, father of plaintiff no. 1 & 2 i.e. Late Sh. Mannu only had 1/3rd share in the suit property. So, he could not have sold the entire suit property to the defendant no. 3 Sh. Kalicharan. The said contention is clearly misconceived in light of Sec. 43 and 44 of the Transfer of Property Act, 1882 (hereinafter referred as 'TPA') which are reproduced in verbatim as under :
43. Transfer by unauthorised person who subsequently acquires interest in property transferred - Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. ........
44. Transfer by one coowner Where one of two or m ore coowner of immovable property legally competent in that behalf transfers his shares of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 10 of 21Where the transferee of a share of a dwellinghouse belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
20. Sec. 44 deals with transfer by one coowner of an unpartitioned estate and recognizes that in an unpartitioned estate, one of the many cosharers can transfer his share in the unpartitioned property. By such purchase, the vendee shall step into the shoes of vendor in the unpartitioned property and shall thereby become one of the cosharers. Therefore, even in a property which has not been partitioned by metes and bounds, there is no restriction on a cosharer to transfer his interest in the property. By virtue of this section, if a cosharer in an immovable property executes a sale deed with respect to the entire property, the said sale deed would be effective and valid to the extent of the interest of the said coowner in the said property and will not be void per se.
21. In order for Sec. 43 of the Transfer of Property Act, 1882, to apply, two conditions are required to be satisfied i.e. firstly, there should have been a fraudulent or erroneous representation by the transferor to the effect that he is authorised to transfer the property which he professes to transfer and secondly, that the transfer must be for consideration. If these two conditions are satisfied then if the transferor who was infact not authorised to transfer the whole property transferred by him, acquires such right thereafter, the transferee has the CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 11 of 21 option to claim that the transfer shall operate on the interest which the transferor subsequently acquired in the concerned property. The logical corollary that emanates from the reading of Sec. 43, is that such kind of contracts are not void per se and the transferee always has the option to insist upon the performance of such contracts at a later stage upon occurrence of any event as contemplated U/Sec. 43. In the facts of the present case, Sec. 43 is squarely applicable for the simple reason that a categorical representation was given in the sale deed dated 19.02.1989 to the defendant no. 3 to the effect that Late Sh. Mannu is the sole owner of the suit property being transferred by the said sale deed. Based on the said erroneous/ fraudulent representation, the defendant no. 3 i.e. Kali Charan executed the said sale deed. Sec. 43 of Transfer of Property Act, 1882, embodies the rule of estoppel which signifies that when a person makes a promise to another person, which is more then what he can perform or which he is capable of performing, then he cannot later on claim incompetence as a legitimate excuse when he acquires the competency to fulfill his promise.
22. The plaintiff no. 1 and 2 are deriving their interest from Late Sh. Mannu as they are contesting this case as LRs of Late Sh. Mannu and claiming their ownership over 1/3rd portion of suit property being LRs of Late Sh. Mannu and hence, any estoppel that had applied on Late Sh. Mannu would equally apply on plaintiff no. 1 and 2. Therefore, CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 12 of 21 since Late Sh. Mannu had executed a sale deed with respect to the entire suit property of 04 bighas and 16 biswas, it is not open to plaintiff no. 1 and 2 to now contend that the sale deed was executed in excess to the legal share of Late Sh. Mannu and is accordingly void. By virtue of Sec. 43 of Transfer of Property Act, 1882, the plaintiff no. 1 and 2 are estopped from raising such a contention. Accordingly, contention raised by the counsel for plaintiffs does not stand and the sale deed dated 19.02.1988 cannot be declared void due to this reason.
23. Alternatively, even if the version of PW1 Sh. Ram Kishan (LR of plaintiff no. 1) is to be believed, he has deposed in his cross examination to the effect that with respect to the rest of the land, i.e. apart from the share of Late Sh. Mannu, a sale deed has been executed in his favour by Smt. Indira and Smt. Chameli. So, he has become an absolute owner of the suit property, and hence is now estopped, by virtue of Sec. 43, from contending that his grandfather Late Sh. Mannu had executed a sale deed in excess of his legal share in the favour of Kali Charan and therefore, sale deed is void.
24. In light of the position of law as discussed above in relation to Sec. 43 and 44 of the Transfer of Property Act, 1882, it cannot be argued that the sale deed dated 19.02.1988, is void just because Late Sh. Mannu executed the sale deed in excess of his legal share.
CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 13 of 21Therefore, sale deed dated 19.02.1988 is not null and void in view of the Sec. 43 & 44 of the Transfer of Property Act, 1882.
25. As held in the preceding paragraphs, the sale deed dated 19.02.1988 cannot be declared to be void. The second relief of declaration of the plaintiffs is with respect to sale deed dated 23.10.1989. I am of the considered view that the plaintiff no. 1 and 2 have failed to prove any locusstandi to challenge the sale deed dated 23.10.1989. Plaintiff no. 1 and 2 are deriving their interest from Late Sh. Mannu and they can only challenge the sale deed which has been executed by him. Furthermore, plaintiff no. 1 and 2 can only claim their share in the suit property to the extent of interest of Late Sh. Mannu in the suit property. I have already held that the sale deed executed by Late Sh. Mannu cannot be declared to be void as the legal heirs of Late Sh. Mannu are estopped from challenging the said sale deed by virtue Sec. 43. Accordingly, the legal heirs of Late Sh. Mannu i.e. plaintiff no. 1 and 2 cannot challenge the title of Kali Charan and any subsequent act done by him to further dispose off the suit property. The challenge with respect to the suit property can only be raised by the legal heirs of Smt. Indira and Smt. Chameli, if an act done by Kali Charan affects their legal rights. However, as held by me in the subsequent paragraph, the legal heirs of Smt. Indira and Smt. Chameli, have not agitated any challenge in the present suit.
CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 14 of 2126. In the present Suit, the amended plaint filed in the present matter bears the signature of only Daya Ram (plaintiff no. 2). Even the affidavit filed in support of the amended plaint only bears the signature of plaintiff no.2. Furthermore, the evidence by way of affidavit has only been filed by plaintiff no. 1. The legal heirs of Smt. Indira though named as plaintiffs in the memo of parties and amended memo of parties have not signed either the plaint or furnished an affidavit in support of the plaint. It is a mandatory requirement of Order VI Rule 15 CPC that every pleading filed in a Court of law is required to be verified at the end by the party on whose behalf the said pleading is being filed. Further, by virtue of Order VI Rule 15 (4) CPC, the person verifying the pleading is also required to furnish an affidavit in support of his pleadings. In absence of compliance of the said requirement of law, the legal heirs of Smt. Indira cannot be treated as plaintiff in the present matter. Furthermore, the legal heirs of Smt. Chameli have not been arrayed as plaintiffs in the present matter and have only been arrayed as proforma defendants. In light of the aforesaid discussion, it can be safely concluded that the legal heirs of Smt. Indira and Smt. Chameli are not concerned with the challenge made in the present suit and have not independently challenged the validity of the sale deed dated 23.10.1989. Therefore, no relief with respect to the validity of sale deed dated 23.10.1989 can be granted in the present matter.
CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 15 of 21In view of the discussion done in paragraph no. 25 & 26, the plaintiffs have no locusstandi to challenge the validity of sale deed dated 23.10.1989.
27. Another ground taken by the plaintiffs for challenging the impugned sale deeds is that the sale deeds are in violation of Sec. 33 of Delhi Land Reforms Act, 1954. Section 33 of DLR Act, is reproduced as under : Sec. 33 Restrictions on transfer by a Bhumidhar (1) No Bhumidhar shall have the right to transfer by sale or gift or otherwise any land to any person, other than a religious or charitable institution or any person in charge of any such Bhoodan movement, as the Chief Commissioner may, by notification in the Official Gazette, specify, where as a result of the transfer, the transferor shall be left with less than eight standard acres in the Union Territory of Delhi .............................
(2) Nothing contained in subsection (1) shall preclude the transfer of land by a Bhumidhar who holds less than eight standard acres of land, if such transfer is of the entire land held by him.....................
28. It has been contended on behalf of the plaintiffs that the suit property in the present matter is less than eight standard acres and accordingly, any sale with respect to the suit property which is less than CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 16 of 21 the entire suit property is barred by virtue of Sec. 33 (2) of DLR Act. It is further contended that Sec. 33 (2) of DLR Act, uses the "land held by him". Based on the said phraseology, it has been contended that any transfer in excess of legal share of a Bhumidhar is barred by Sec. 33(2) of DLR Act. Accordingly, it has been contended that since Late Sh. Mannu was legally entitled to only 1/3rd share of the suit property, he could not have transferred the entire suit property to defendant no. 3 and hence, the sale deed dated 19.02.1988 is void by virtue of Sec. 33 (2) R/w Sec. 45 of DLR Act.
The said argument does not hold any water for the simple reason that Sec. 33 (2) of said Act, only intends to curb any partial transfer of a land which is less than 08 acres to prevent excessive division of small parcels of land. Sec. 33 (2) is not concerned with a transfer in excess of the legal share of a Bhumidhar. Since, the entire undivided land of 04 bighas 16 biswas has been transferred by Late Sh. Mannu vide sale deed dated 19.02.1988, Sec. 33 (2) has no relevance with respect to the said sale deed.
29. The onus to prove that the sale deed dated 19.02.1988 does not bear the thumb impression of Late Sh. Mannu and the said sale deed had not been executed by Late Sh. Mannu, was on the plaintiffs but except making bald assertion, not even a shred of evidence has been brought on record by the plaintiffs to prove that the thumb impression CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 17 of 21 of Late Sh. Mannu has been forged on impugned sale deed. The plaintiffs were free to examine any expert witness in this regard; however, the plaintiffs have failed to discharge their onus to prove forgery. In light of the said discussion, this contention raised in the plaint is dismissed.
In view of the aforesaid discussions, both the issues are decided against the plaintiffs and in favour of defendants.
ISSUE NO. 2.
Whether the suit is barred by law of limitation ? OPD
30. Since the suit pertains to cancellation of sale deeds, the period of limitation is three years from the day when the cause of action accrued. The plaintiff has pleaded in the plaint that they became aware about the impugned sale deeds only on 06.09.2005 when the defendant no. 1 filed his reply to the application U/O 1 Rule 10 of the plaintiff no. 1 and 2 before the Court of D.C. (North), Delhi, in the matter of "Pushp Lata Gupta Vs. Tehsildar, Civil Lines". Accordingly, the suit has been filed in the year 2006 and is within the limitation period as per the plaintiffs.
31. However, the defendants have pleaded that the sale deeds pertain to the year 1988 and 1989 and the present suit is accordingly barred by limitation. It has been further contended by defendants that a CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 18 of 21 compromise was reached between plaintiffs and defendant no. 1 & 2 in the year 2001. In support of said contention, defendants have placed on record an order of SDM, Sadar Bazar, Delhi, Sh. V. Valte, dated 03.06.2002 in the matter of "Sh. R.C. Gupta Vs. Sh. Krishan Pal"
(Ex.DW1/3), in which, it has been recorded that a report has been submitted by SHO, Timar Pur dated 13.04.2002 stating that the matter has been settled amicably between both the parties. Based on the said report of SHO, the SDM, Sadar Bazar, had closed the matter after observing that the matter has been amicably settled. It has been contended that Krishan Pal (who was the party in above mentioned case before SDM, Sadar Bazar) being LR of Sh. Phool Singh, has become plaintiff no.1 in the present matter as he was arrayed as a plaintiff pursuant to the death of Sh. Phool Singh and hence, knowledge of the impugned sale deed ought to be imputed on plaintiff no.1 as when the said compromise was reached between the parties, plaintiffs were well aware of the impugned sale deeds. While the SDM, Sadar Bazar's order does indicate that a settlement has been reached between the parties and also indicates that Krishan Pal (one of the LR of plaintiff no.1) was a party to said settlement, the said order nowhere mentions or indicates anything about the knowledge of impugned sale deeds.CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 19 of 21
32. Secondly, the defendants have placed on record affidavits executed by plaintiff no. 3, 4 & 5 (Ex.DW1/5 to Ex.DW1/7) to the effect that the defendant no. 1 is the cobhumidhar and in possession of the land measuring 02 bigha 04 biswas out of the total suit property. I have already held that the plaintiff no. 3 to 5 cannot be treated as plaintiffs in the present matter and hence, the affidavits executed by them cannot be considered for imputing knowledge of the impugned sale deeds on the plaintiffs.
33. Lastly, the defendants have also brought on record a sale deed dated 29.03.2001 executed by Smt. Chameli in favour of defendant no. 1 with respect to the rest of the share in the suit property to an extent of 600 sq. yards. The defendants have contended that sale deed has been duly witnessed by Sh. Ram Kishan and Sh. Krishan Pal who are plaintiffs in the present matter. In light of the same, it has been contended that the limitation period should start from 29.03.2001 and the suit is clearly barred by limitation. Again, the sale deed dated 29.03.2001 has not been impugned in the present matter by the plaintiffs and no cancellation of the said sale deed has been sought. Therefore, the said sale deed has no relevance whatsoever with respect to accrual of cause of action in the present matter. It cannot be said that just because Sh. Ram Kishan and Sh. Krishan Pal have witnessed the sale deed dated 29.03.2001, they were also aware about the impugned CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 20 of 21 sale deeds on the said date. The defendants have failed to prove that the plaintiffs had knowledge of the impugned sale deeds prior to 06.09.2005. Accordingly, this issue is decided in favour of plaintiffs.
ISSUE NO. 1.
Whether the plaintiff has no cause of action to file the suit against the defendant no.1 and 2? OPD
34. Onus to prove this issue was upon the defendants. As per the plaintiffs, they did not have the knowledge that their father had executed any sale deed in favour of the defendant no. 3 and defendant no. 1 & 2 had taken illegal part possession of suit property, therefore, on the day when the Suit was filed defendants have cause of action in their favour to file the present Suit. Therefore, issue no. 1 is decided against the defendants and in favour of plaintiffs.
35. In view of aforesaid appreciation and discussions, plaintiffs are not entitled to any relief. Present Suit stands dismissed. DecreeSheet be prepared, accordingly.
Announced in the open court [VIPIN KHARB]
on 11.12.2019 SCJcumRC:Central District
Tis Hazari Courts, Delhi
CS No. 97429/17 Phool Singh Vs. Pushp Lata Gupta Page 21 of 21