Delhi District Court
Braj Nandan Singh vs Sushma on 31 October, 2019
Braj Nandan Singh v. Sushma
IN THE COURT OF CHARU ASIWAL : CIVIL JUDGE - 08
(CENTRAL), ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO : 95252/16 (OLD NO.567/16)
In the matter of :
Braj Nandan Singh
S/o Sh. Harakh Singh,
R/o B190, Shivaji Vihar,
Near Raja Garden, New Delhi. ...PLAINTIFF
VERSUS
1. Sushma
W/o Sh. Braj Nandan Singh,
R/o B144, Kidwai Nagar East
New Delhi.
2. Tarsem Lal
S/o Sh. Ganga Ram,
R/o B464, Pandav Nagar,
New Delhi.
3. Meera Khurana
W/o Sh. Satish Khurana
R/o BG5A/26C, Paschim Vihar,
New Delhi - 110 063 ...DEFENDANTS
Date of institution : 19.11.2005
Date of judgment : 31.10.2019
SUIT FOR CANCELLATION OF SALE DEED AND SALEPURCHASE
AGREEMENT, TO DECLARE THE OWNERSHIP, TO RECOVER THE
POSSESSION
SUIT NO : 95252/16 (OLD NO.567/16) Pg 1 of 24
Braj Nandan Singh v. Sushma
JUDGMENT
1. Vide this judgment, I shall decide the suit for cancellation of sale deed and salepurchase agreement, to declare the ownership to recover the possession in favour of plaintiff.
BRIEF FACTS OF THE PLAINT :
2. It is averred by the plaintiff in the plaint that Tarsen Lal, S/o Sh. Ganga Ram, (defendant No.2) R/o B464, Pandav Nagar, New Delhi was the real and actual exclusive owner and in possession of DDA built up Flat No.BG5A/26C, LIG category situated in the layout plan of Paschim Vihar, Residential Scheme, Delhi with the loan hold rights of the land under the said property. That on 28.01.1987, defendant No.2 appointed and nominated plaintiff as his true and lawful general attorney to act on his behalf and for payment of loan to pay the lease money and other dues regarding the suit property, on demand. To file affidavit or reply to any letter or notice, to sign and get the lease deeds of the said flat and get the same registered in the office of the S.R. Delhi to sign and get the supplementary deed of the said flat from the office of the DDA to appear in the office of the appropriate authority in respect of all the matters regarding the said flat and to do all other acts, to pay the house tax of SUIT NO : 95252/16 (OLD NO.567/16) Pg 2 of 24 Braj Nandan Singh v. Sushma the said property, to apply or and get the electric, water etc. to execute, sign and present all kinds of suits, complaints etc, to let out the said property on rent to any person, to file suit for the ejectment of the tenant from the said property, to sell the said property with the lease hold rights of the land under the said property, to receive the consideration amount or earnest money and to hand over the possession to the purchaser, to apply and get the sale permission, to appoint any arbitrator in respect of any dispute, to engage any advocate to appoint and remove further attorney etc. The said General Power of Attorney was never cancelled by defendant No.2. At the time of constituting the above general power of attorney the relationship between plaintiff and his wife Smt. Sushma (defendant No.1) was cordial and therefore, the money was paid and receipt was made in the name of defendant No.1. The plaintiff could not understand his wife's nature and who was residing with him like a good wife, however, but in those days all the documents and papers related to the suit property and other important documents were either lost or taken away for which the plaintiff had lodged complaint in writing to PS Paschim Vihar, New Delhi. The ration card and other important documents which were in the possession of defendant No.1 were lost or SUIT NO : 95252/16 (OLD NO.567/16) Pg 3 of 24 Braj Nandan Singh v. Sushma taken away by her for which a complaint was also lodged. After some time the plaintiff's identity card and other important documents also got lost from his house. On 13.10.1989 a complaint was lodged by the plaintiff to PS Paschim Vihar, about theft of following papers i.e. (a) Receipt of payment of Rs.1500// challan No.121527 from DDA, (b) Registration Certificate vide No.19168 dated 21.05.1980 in the name of Tarsem Lal, House No.H468, New Rajendra Nagar, Delhi, (c) letter for possession, (d) payment receipt against demand letter for possession,
(e) letter of possession, (f) letter for connection of electricity and (g) paper concerned to water meter. On 16.02.1998 the plaintiff identity card issued by Election Commission was missed from his house in which reference a complaint was given by the plaintiff in PS Paschim Vihar. On 13.07.2005 the defendant No.1 left the house of the plaintiff with their children in the absence of plaintiff without any information, and also took the household goods, ornaments, cash amounts etc. After some time defendant No.1 and her mother Smt. Prema Devi suddenly came to the suit property and tried to eject the plaintiff from his own house, the plaintiff called the police but when police came on the spot, the police took the key of the house from the possession of the plaintiff SUIT NO : 95252/16 (OLD NO.567/16) Pg 4 of 24 Braj Nandan Singh v. Sushma and handed over to the defendant no.1 and took sign of the plaintiff on some blank papers. Thus the plaintiff became homeless. After some time defendant No.1 also sold all remaining household goods from the suit property. A complaint was lodged by the plaintiff to the DCP West District, in this regard. All the documents are in the name of plaintiff concerning the suit property and only the receipt was made in the name of defendant No.1 at the time, because of good relation between them. A Will was made by defendant No.2 in favour of defendant No.1 regarding the suit property but defendant No.2 is still alive and hence, the Will cannot be executed during the life time of the executor. It is well settled law that no Will can be executed at the living period of executor. On 14.09.2005 the plaintiff got to know through some reliable sources that the suit property has been sold by the defendant No.1 to the defendant No.3 on the basis of forged documents prepared by defendant No.1, in which regard a criminal complaint is filed before the Hon'ble Court of CMM, Tis Hazari Courts, Delhi. On 15.09.2005 the plaintiff filed an application to get detail about the entire transaction. On 19.09.2005 the plaintiff got the certified copy of the forged and fabricated sale deed in the name of defendant No.3 made by the SUIT NO : 95252/16 (OLD NO.567/16) Pg 5 of 24 Braj Nandan Singh v. Sushma defendant No.1 concealing the real circumstances and facts. On 15.09.2005 the plaintiff had given an application to the Deputy Registrar, DDA, Vikas Sadan, New Delhi, requesting to stay, the proceedings to hold the suit property which was sold on the basis of forged and fake documents by the defendants No.1 and 3. Now the defendants No.1 and 3 are trying to make freehold the said property dispossessing the real and actual attorney and owner on the basis of forged, fake and falsely fabricated documents. It is well settled law that the property sold on the basis of forged documents should not be freehold and must be cancelled the such sale and purchase agreement having no value in eye of law. Being aggrieved by the illegal acts of defendants No.1 and 3 the plaintiff has been come on the road and ejected from his own house being dispossessed which was bought by him through his own hand earnings. Hence, the present suit. WRITTEN STATEMENT OF DEFENDANT NO.2
3. It is submitted by defendant No.2 that he has sold the suit property i.e. Flat bearing No.BG, 5A/26C, LIG Colony, Paschim Vihar, Delhi, on 28.01.1987 to plaintiff and had nominated & appointed him as his general attorney to act on his behalf and to pay the loan and other dues SUIT NO : 95252/16 (OLD NO.567/16) Pg 6 of 24 Braj Nandan Singh v. Sushma regarding the suit property on demand and to file affidavit on reply to any letter or notice, to sign and get the lease deeds of the said flat and get the same registered in the office of the S.R. Delhi to sign and get the supplementary deed of the said flat from them etc. Defendant No.2 further states that he transferred all his power and right against the abovesaid property to plaintiff and handed over the possession to him against a consideration of Rs.25000/ and signed on the receipt as suggested by the concerned property dealer, and handed over all documents of DDA relating to the property in question to plaintiff. However, defendant No.2 never nominated or appointed any other person for this property as his general attorney, neither did he sell it to any other person nor defendant No.1 obtained any sum of amount against the suit property. Also, it is submitted that except appointing his general attorney to plaintiff, defendant No.2 had no role in the transaction between defendants No.1 and 2. It is submitted that the defendant No.2 has no knowledge about the domestic matters of plaintiff and defendant No.1. Defendant No.2 submitted that since the he is an illiterate person, he could not understand the name mentioned on the receipt, hence, he cannot say anything about the name SUIT NO : 95252/16 (OLD NO.567/16) Pg 7 of 24 Braj Nandan Singh v. Sushma mentioned on the receipt as he signed on the receipt as according to the property dealer. He further stated that also it is correct that he is alive and the Will was prepared as stated by plaintiff was only for the suit property.
WRITTEN STATEMENT OF DEFENDANT NO.3
4. It is stated by defendant No.3 that plaintiff is claiming the ownership of the suit property on the basis of General Power of Attorney dated 28.01.1987 which is an unregistered document and has not been properly stamped, as required under the law. It is a well settled law that the unregistered and undervalued document is not admissible in evidence and no relief can be sought on the basis of the said documents, as the same has no value in the eyes of law. Therefore, the suit of the plaintiff is liable to be dismissed on this ground alone. The present suit has been filed by the plaintiff in collusion with defendant No.1 just to extract the money from defendant No.3 and to cause unlawful harm to the defendant No.3. It is pertinent to mention here that the plaintiff was very much aware about the transactions between the defendant No.1 and defendant No.3 and the present suit has been filed with malafide intentions after completion of execution and registration of SUIT NO : 95252/16 (OLD NO.567/16) Pg 8 of 24 Braj Nandan Singh v. Sushma all the relevant documentation and delivery of peaceful possession to the defendant No.3. The defendant No.3 is the rightful owner and is in possession of the suit property. The plaintiff has got no right, title or interest in the suit property and he has no locus standi to file the present suit against the defendant No.3. The plaintiff himself executed a notice objection certificate on a stamp paper which was duly notarized on 11.03.2005 with respect to the suit property and he has authorized his wife i.e. defendant No.1 to sell the suit property. Therefore, the law of estoppel shall apply in the present case and the suit is liable to be dismissed on this ground alone. The defendant No.3 has purchased the suit property from defendant No.1 who has executed an agreement to sell dated 16.08.2005 which was duly registered before the Sub Registrar, Punjabi Bagh, Delhi. The defendant No.1 also executed a possession letter dated 16.08.2005 and a Will in favour of the defendant No.3 dated 16.08.2005 which was also registered with the Sub Registrar vide registration No.5277 in Additional Book No.3, Volume No.24 on page No.43. The defendant No.1 also issued a Special Power of Attorney dated 16.08.2005 along with an agreement to appoint arbitrator. A General Power of Attorney dated 16.08.2005 was also SUIT NO : 95252/16 (OLD NO.567/16) Pg 9 of 24 Braj Nandan Singh v. Sushma executed by the defendant No.1 in favour of the answering defendant which was also registered with the SubRegistrar. The defendant No.3 has taken all the precautionary measures before purchasing the suit property from the defendant No.1. The defendant No.1 has handed over the copies of the payment receipt issued by the earlier owner of the property i.e. defendant No.2 in the name of the defendant No.1. The said receipt is duly registered with the SubRegistrar vide registration No.2292 in Additional Book No.4, Vol No.331, on page No.156 dated 28.06.1987. A Will dated 28.01.1987 duly registered with the Sub Registrar executed by defendant No.2 in favour of defendant No.1 was also shown to the defendant No.3. The defendant No.1 also handed over the copy of no objection certificate executed by the plaintiff in her favour. Therefore, after the requisite verification, the defendant No.3 has concluded the transaction and got executed all the required documents from the defendant No.1 and paid the consideration amount to the defendant No.1 vide receipt dated 16.08.2005. It is specifically denied that the plaintiff came to know on 14.09.2005 regarding the sale proceeds by the defendant No.1. It is submitted that the plaintiff was very much aware of the sale of the property and execution of the SUIT NO : 95252/16 (OLD NO.567/16) Pg 10 of 24 Braj Nandan Singh v. Sushma documents in this regard. It is submitted that the execution of receipt of consideration amount and the Will by the defendant No.2 in favour of defendant No.1 are already admitted by the plaintiff in the present suit. Therefore, the question of forging the documents by the defendant No.1 does not arise. It is pertinent to mention here that the plaintiff has failed to disclose the fact that how he came to know about the sale proceeds by defendant No.1, which shows the malafide on the part of the plaintiff. The plaintiff himself admitted in its plaint that the agreement to sell and other document were duly executed by the defendant No.1 in favour of the defendant No.3 and the same are duly registered with the sub registrar, therefore, the said documents cannot be said to be forged and fabricated. On the other hand the plaintiff is claiming the ownership of the property on the basis of a power of attorney which is neither a registered document nor a properly stamped one. REPLICATION :
5. Plaintiff filed replication to the written statement of the defendant No.3 denying the case of the defendant; reiterating and reaffirming the case as set up by the plaintiff in the plaint.
ISSUES :
SUIT NO : 95252/16 (OLD NO.567/16) Pg 11 of 24
Braj Nandan Singh v. Sushma
6. From the pleadings of the parties, following issues were framed for trial:
1. Whether the plaintiff is entitled to a decree of possession in respect of the suit premises, as prayed for? OPP.
2. Whether the plaintiff is entitled to the decree for cancellation of sale purchase agreement/ sale deed along with other forged documents made by defendants No.1 & 3, as prayed for? OPP.
3. Whether the plaintiff is entitled for decree of declaration for ownership in respect of suit premises, as prayed for?
OPP.
4. Whether the plaint is liable to be rejected in terms of Order 7 Rule 11 of CPC? OPD.
5. Whether the suit of the plaintiff is under valued? OPD.
6. Whether the present suit is bad for mis joinder/ nonjoinder of necessary parties? OPD.
7. Relief.
PLAINTIFF'S EVIDENCE:
7. In order to prove his case, plaintiff examined himself as PW1, whose examination in chief is by way of affidavit Ex.PW1/A. PW1 relied on SUIT NO : 95252/16 (OLD NO.567/16) Pg 12 of 24 Braj Nandan Singh v. Sushma following documents:
1. Ex.PW1/1 certified copy of GPA.
2. Ex.PW1/2 copy of police complaint with acknowledgement.
3. Ex.PW1/3 copy of police complaint dated 26.02.1998 with acknowledgement.
4. Ex.PW1/4 certified copy of agreement to sell dated 16.08.2005.
5. MarkA photocopy of Receipt executed by defendant No.2.
6. MarkB photocopy of police complaint dated 25.11.2004.
7. MarkC photocopy of police complaint dated 13.10.1989.
8. MarkD photocopy of police complaint dated 26.08.2005.
9. MarkE photocopy of acknowledgement from DDA dated 19.09.2005.
10. MarkF photocopy of affidavit.
11. MarkG photocopy of complaint (CAW Cell) dated 16.03.2005.
12. MarkH photocopy of letter of Supreme Court dated 22.07.2004.
13. MarkI photocopy of police complaint dated 26.08.2005.
8. No evidence was lead on behalf of defendants as their right to lead evidence was closed vide order dated 06.05.2013.
9. I have heard the arguments and perused the record. Issuewise findings SUIT NO : 95252/16 (OLD NO.567/16) Pg 13 of 24 Braj Nandan Singh v. Sushma as follows: ISSUE NO.2 Whether the plaintiff is entitled to the decree for cancellation of sale purchase agreement/ sale deed along with other forged documents made by defendants No.1 & 3, as prayed for? OPP.
10. Onus of this issue was placed on the plaintiff. Plaintiff has sought cancellation of documents dated 16.08.2005, which is a registered sale deed between defendant No.1 and defendant No.3 pertaining to the suit property. The basis of the present suit is a General power of attorney dated 28.01.1987, executed by defendant No.2 (the erstwhile owner) in favor of the plaintiff.
Before delving into the appreciation of facts and evidences I deem it fit to refer to the relevant provision of Specific Relief Act, 1963, which is section 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 SUIT NO : 95252/16 (OLD NO.567/16) Pg 14 of 24 Braj Nandan Singh v. Sushma 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.
11. On a bare reading of the above provision what can be clearly understood is that to be entitled for cancellation of an instrument, such instrument should be found to be void or voidable as against the plaintiff. In other words the entire locus of the party seeking to set aside the instrument is based on the assumption that the document under challenge is void/voidable against him. Therefore, at this juncture it becomes necessary to discuss the import of the words 'void and voidable'. For the this purpose reference to Indian Contract Act, 1872 is inevitable. A void agreement is simply any agreement which in unenforceable in law, on the other hand a voidable contract is one which is valid till the time one of the party to the contract chooses to rescind or avoid it. In any case both these concepts are applicable to a 'party to the contract', and not a third party, meaning thereby that only a contracting party has a locus to set aside a contract by way of cancellation. However in the present case admittedly the plaintiff is not a SUIT NO : 95252/16 (OLD NO.567/16) Pg 15 of 24 Braj Nandan Singh v. Sushma party to the Ex.PW1/4 which is the document/registered sale deed sought to be cancelled by the plaintiff, rather defendant No.1 and defendant No.3 are the executants. Hence, this court do not find that the plaintiff has the locus to seek cancellation of the Ex.PW1/4. Accordingly issue No.2 is decided against the plaintiff.
ISSUE NO.3 Whether the plaintiff is entitled for decree of declaration for ownership in respect of suit premises, as prayed for? OPP.
12. Onus of this issue was placed on the plaintiff. Plaintiff claims to be the true owner of the suit property, on the strength of Ex.PW1/1, which is an unregistered General Power of Attorney (GPA) dated 28.01.1987, executed by defendant No.2 in favour of the plaintiff. It is the contention of the plaintiff that he had purchased the suit property by his own income from defendant No.2 in the year 1987, after payment of due consideration. It is the stand of the plaintiff that such payment receipt does not confer any title or right on defendant No.1 so as to disentitle the plaintiff from the suit property. As per paragraph 2 of the plaint by way of such GPA plaintiff was even authorized to sale of the suit property, receive consideration and put the purchaser in possession of the suit property, along with all the other acts pertaining to the suit SUIT NO : 95252/16 (OLD NO.567/16) Pg 16 of 24 Braj Nandan Singh v. Sushma property. This version of Plaintiff is also supported and affirmed by defendant No.2 in his Written statement, wherein he has stated in paragraph 1 of his Written Statement that he has sold the suit property by way of GPA dated 28.01.1987 to the plaintiff, and that after execution of such document he has no role whatsoever with the subsequent sale purchase of the suit property, if any. Plaintiff herein claims that the transaction held between defendant No.1 and defendant No.3 for the sale and purchase of the suit property is null and void against him, being unenforceable in law. Plaintiff further relies on Marked document, which is identified as 'Mark A', which, admittedly is payment receipt for payment of sale consideration to defendant No.2, however such receipt was made in the name of defendant No.1, and as stated by plaintiff, at that point of time the relationship between the plaintiff and defendant No.1 was cordial. He claims nullity of Ex.PW1/4, which is a registered sale deed dated 16.08.2005, executed by defendant No.1 in favour of defendant No.3, on the grounds that defendant No.1 did not have any right or title in the suit property, hence she could not have passed a better title to defendant No.3.
13. The question for consideration before this court is if the plaintiff has SUIT NO : 95252/16 (OLD NO.567/16) Pg 17 of 24 Braj Nandan Singh v. Sushma been able to show a better title based on an unregistered GPA (Ex.PW 1/1) as against a registered document (Ex.PW1/4)?
14. For this purpose reference to section 50 of Registration Act, 1908 becomes inevitable , which is reproduced below for ready reference:
50. Certain registered documents relating to land to take effect against unregistered documents.--
(1) Every document of the kinds mentioned in clauses (a), (b), (c), and (d) of section 17, sub section (1), and clauses (a) and (b) of section 18, shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not.
(2) Nothing in subsection (1) applies to leases exempted under the proviso to subsection (1) of section 17 or to any document mentioned in subsection (2) of the same section, or to any registered document which had not priority under the law in force at the commencement of this Act.
Explanation.-- In cases where Act No.16 of 1864 or the Indian Registration Act, 1866 (20 SUIT NO : 95252/16 (OLD NO.567/16) Pg 18 of 24 Braj Nandan Singh v. Sushma of 1866), was in force in the place and at the time in and at which such unregistered document was executed, "unregistered" means not registered according to such Act, and, where the document is executed after the first day of July, 1871, not registered under the Indian Registration Act, 1871 (8 of 1971), or the Indian Registration Act, 1877 (3 of 1977), or this Act.
15. Section 50 above refers to documents as entailed under Section 17 Rule 1 (a), (b) (c) which is a Section drafted for compulsory registration of certain documents and a document like a sale deed which comprises in itself transfer or conveyance of any immovable property would squarely fall under the ambit of Section 17 Rule 1(a), (b), (c) of Registration Act.
16. The mandate of Section 50 of Registration Act is crystal clear that any registered document shall get precedence against every unregistered document relating to the same property.
17. In the present case as well the GPA which is Ex.PW1/1 dated 28.01.1987 is merely an unregistered document and is pitted against a registered sale deed which in itself is a valid proof of conveyance of suit property and would any case carry more weight and value as compared SUIT NO : 95252/16 (OLD NO.567/16) Pg 19 of 24 Braj Nandan Singh v. Sushma to an unregistered GPA. Moreover plaintiff although claims to have paid the consideration himself to defendant No.2 while Ex.PW1/1, GPA was executed, however admittedly the receipt of such payment is in name of defendant no.1, hence this document also does not corroborate the version of the plaintiff, rather if anything goes against him. Plaintiff has further stated that all the other documents pertaining to the suit property got lost and that he had lodged a missing complaint with Police Station Paschim Vihar. Plaintiff has stated that documents pertaining to purchase of suit property from defendant no.2 also got lost and that he had registered a complaint with PS Paschim Vihar on 13.10.1989. Such complaint is MarkC. Although, this document is only a photocopy, and the neither the original has been produced nor any witness has been summoned by the plaintiff to prove the authenticity of this document. Hence, such document cannot be relied on for any purpose. Furthermore, to support his case, plaintiff has brought on record Ex.PW 1/2, which is a complaint dated 30.06.2005 addressed to SHO, Paschim Vihar made by the plaintiff himself. On perusal of such document, it is found that such complaint was received in the police station on 30.06.2005, as is evident from the stamp of the police station. However SUIT NO : 95252/16 (OLD NO.567/16) Pg 20 of 24 Braj Nandan Singh v. Sushma such complaint is not clear as to the description of the documents claimed to have been lost. The complaint simply states that "all papers/documents of the above mentioned flat missplaced" (sic). Neither does the complaint state from where did the document got lost and/or how many documents got lost. Neither does the complaint state the nature of documents claimed to have been lost. The complaint appears to be lacking in details and lackluster. Hence apart from the ExPW1/1, i.e. GPA dated 28.01.1987, plaintiff has not brought on record any other evidence to prove his ownership on the suit property. Consequently, it cannot be said that GPA of the plaintiff gives a better title to the plaintiff as against a registered sale deed. Hence, issue No 3 is decided against the plaintiff.
ISSUE NO.1 Whether the plaintiff is entitled to a decree of possession in respect of the suit premises, as prayed for? OPP.
Onus of this issue was placed on the plaintiff.
18. Plaintiff herein is seeking possession on the basis of:
a. Title/Ownership over the suit property. b. Previous possession over the suit property.
SUIT NO : 95252/16 (OLD NO.567/16) Pg 21 of 24
Braj Nandan Singh v. Sushma
The question of title/ownership has already been dealt with in Issue No.3.
19. Now coming to the claim of previous possession, plaintiff claims that he had been dispossessed of the suit property. To prove his possession over the suit property plaintiff has neither brought any direct evidences nor any oral testimony of any witness, apart from his own testimony. Plaintiff has filed a document which is claimed to be a complaint addressed to DCPPaschim Vihar, against illegal possession over the suit property by defendant No.1 and some other unknown persons which is identified as MarkI. However such document is only a photocopy, and no witness was summoned to prove the authenticity of such document, hence no reliance can be placed on this document. Additionally, in his pleadings Plaintiff has only stated that he had lost his voter's identity card and on 16.02.1998, and lodged a complaint with PS Paschim Vihar, such complaint is Ex.PW1/3. Plaintiff was cross examined on this point, on cross examination dated 24.10.2011 wherein plaintiff himself has deposed that "after my election card was misplaced, I never applied for fresh card as I did not see the need. I never visited the police station again regarding my complaint about missing voter ID". What SUIT NO : 95252/16 (OLD NO.567/16) Pg 22 of 24 Braj Nandan Singh v. Sushma conspires from the perusal of such crossexamination and the Ex.PW 1/3, is that neither the complaint state the address of which the lost voter's ID pertained nor did the plaintiff made any efforts to pursue such complaint or to het his voter's ID reissued, since the year 1998. I find it hard to believe that any person who had lost so many valuable documents pertaining to his identify as well as his immovable property did not make any efforts to either trace those documents or to reconstruct those lost documents, this goes beyond any conceivable common sense. Hence, the version of the plaintiff is not found to be plausible. Therefore, at this stage, what can be inferred that plaintiff has not been even able to establish his possession over the suit property at any point of time before filing of the present suit. ISSUES NO.4, 5 & 6 Whether the plaint is liable to be rejected in terms of Order 7 Rule 11 of CPC? OPD.
Whether the suit of the plaintiff is under valued? OPD. Whether the present suit is bad for misjoinder/ nonjoinder of necessary parties? OPD.
20. Onus to prove these issues was on defendant No.3. In the present case, no evidence has been lead on behalf of defendant No.3 as their SUIT NO : 95252/16 (OLD NO.567/16) Pg 23 of 24 Braj Nandan Singh v. Sushma right to lead evidence was closed by order of this court dated 06.05.2013 and hence, defendant has not been able to discharge his burden on any of the three issues. Therefore, all these issues are decided against the defendants.
RELIEF
21. In view of the discussion hereinabove on the issues, it is held that plaintiff has not been able to prove his case. Hence, suit of the plaintiff is dismissed. No order as to costs.
22. Decree sheet be prepared accordingly. Digitally signed by CHARU CHARU ASIWAL Date:
23. File be consigned to Record Room. ASIWAL 2019.11.01 16:17:14 +0530 Announced in the open court (Charu Asiwal) on 31.10.2019 Civil Judge - 08 (Central)/Delhi SUIT NO : 95252/16 (OLD NO.567/16) Pg 24 of 24