Delhi District Court
Smt. Samriti Bhasin vs Union Of India on 26 March, 2008
//1//
IN THE COURT OF SH. DAYA PRAKASH
ADDITIONAL DISTRICT JUDGE: DELHI
Suit No. : 480/2003
Smt. Samriti Bhasin
w/o.Sh.Anand Bhasin,
d/o.Late Sh.Mulkh Raj Sawhney,
r/o.55/8, Second Floor,
Old Rajinder Nagar,
New Delhi
...Plaintiff
VERSUS
1. Union of India
Ministry of Urban Development,
Nirman Bhawan,
New Delhi.
(through its Secretary)
2. Land & Development Office
Through Land & Development Officer,
6th floor, Nirman Bhawan,
New Delhi.
3. Smt.Meera Sawhney
w/o.Late Sh.Arvind Kumar Sawhney
4. Ms.Meenaxi Sawhney
d/o. Late Sh.Arvind Kumar Sawhney
5. Ms.Asha Deep Sawhney
d/o.Late Sh.Arvind Kumar Sawhney
defendants no.3 to 5 all
r/o.55/8, Ground Floor,
Old Rajinder Nagar,
New Delhi.
...Defendants
1/87
//2//
Date of Institution of the Suit: 18.11.2003
Date on which the judgment has been reserved:24.01.2008
Date of delivery of judgment: 26.03.2008.
SUIT U/S.31 OF THE SPECIFIC RELIEF ACT, 1961 FOR
CANCELLATION OF DOCUMENT AND FOR MANDATORY
& PERMANENT INJUNCTION
JUDGMENT
1. By this judgment I shall dispose of the suit u/s.31 of the Specific Relief Act, 1961 praying for cancellation of document namely Relinquishment Deed dt.14.08.1981 and decree of Mandatory and Permanent Injunctions filed by the plaintiff against the defendants.
2. As per plaint, the father of plaintiff namely Sh.Mulkh Raj Sawhney was alloted property no.55/8, Old Rajinder Nagar, New Delhi measuring 85.9 sq. yds. by defendant no.2 who is controlled by defendant no.1, on Perpetual Lease and thereafter till death Sh.Mulkh Raj Sawhney was residing in the suit property alongwith his son Sh.Arvind Kumar Sawhney, daughter i.e. plaintiff and his wife Smt.Vedwati Sawhney. Sh.Mulkh Raj Sawhney expired on 04.06.1981 leaving behind plaintiff, his son Sh.Arvind Kumar Sawhney (the husband of 2/87 //3// defendant no.3 and father defendants no.4 & 5) and his widow Smt.Vedwati. The marriage of plaintiff took place in September, 1977 and plaintiff went alongwith her husband to his work place at Amarkantak in M.P. Subsequently, after the demise of father of plaintiff, the plaintiff also shifted to Delhi and started living in the suit property alongwith her family since 1984. In the year 1982, the plaintiff joined hands with her brother for raising construction of the suit premises. The mother of the plaintiff Smt.Vedwati Sawhney died on 10.05.1985 leaving behind plaintiff and Sh.Arvind Kumar Sawhney as her only legal heirs. After completion of construction with mutual consent of the plaintiff and his brother, the plaintiff has been living and in occupation of the second floor of the suit premises with her family since June, 1991. The plaintiff residing in the second floor of the suit premises in her own independent legal right as the plaintiff has ½ undivided share in the suit premises. The brother of plaintiff was in use, occupation and possession of the ground floor of the suit premises from June, 1991. The brother of plaintiff let- out the first floor to a tenant and has failed to share the rent with the plaintiff despite repeated request. The brother of plaintiff died on 28.10.2002 leaving behalf his wife i.e. 3/87 //4// defendant no.3 and two daughters i.e. defendants no.4 & 5. During lifetime of brother of plaintiff there was no dispute as plaintiff and his brother were residing in the suit premises as the co-owners having the undivided ½ share each in the suit premises. However, after the death of brother of plaintiff, the defendants no.3 started claiming right over entire suit premises. In order to enquire about the latest status of mutation of the suit property, the plaintiff visited the office of defendant no.2 on 12.03.2003 where the plaintiff was informed that infact her brother had got the suit property transferred in his own name sometime in August, 1981 i.e. within two and half months of death of father of plaintiff, without the consent, knowledge, permission of plaintiff and the said mutation was done on the basis of Relinquishment Deed executed by plaintiff and her deceased mother. On 17.03.2003, the plaintiff wrote letter to defendant no.2 informing that neither the plaintiff nor her mother have ever executed any document as the plaintiff at relevant time was not in Delhi and requested to cancel the said mutation. On 29.03.2003, plaintiff obtained the certified copy of Relinquishment Deed dt.14.08.1981 executed by plaintiff as well as her mother and it transpired that brother of plaintiff had fraudulently got said Relinquishment Deed 4/87 //5// executed by forging the signatures of plaintiff as well as her mother. Even the two witnesses who witnessed the Relinquishment Deed are absolutely unknown, unconcerned and unconnected with the family of the parties. The said Relinquishment Deed has been got registered by brother of plaintiff fraudulently in the office of Sub-Registrar, Delhi vide document no.4254 in Additional Book no.I, Volume no.4524 at pages 126 and 128 dt.17.08.1981. The plaintiff written several letters to defendant no.2 to cancel the said Relinquishment Deed but they failed to do so. The defendants no.3 to 5 are pressurizing defendants no.1 & 2 to get the said suit property further mutated in their favour. Hence, plaintiff sent a legal notice dt.31.05.2003 u/s.80 CPC to defendant no.2. But despite receipt of said notice, defendant no.2 failed to cancel the mutation. Meanwhile plaintiff received a letter dt.02.08.2003 from defendant no.3 wherein defendant no.3 informed that plaintiff had no legal right in the suit property and plaintiff had been permitted by her Late husband to occupy the second floor in 1991 on humanitarian and moral obligation as a guest. The plaintiff replied the said letter vide reply dt.18.08.2003 wherein plaintiff informed that defendant no.3 has 50% share in the suit property. Meanwhile defendant 5/87 //6// no.3 filed Civil Writ Petition no.5420/03 wherein alongwith UOI, the plaintiff has been impleaded as respondent no.3 to mutate the suit property in the name of defendant no.3. On 05.11.2003 the defendant no.3 alongwith some of her relations came to the portion of the suit premises of the plaintiff and threatened the plaintiff to vacate the suit premises.
Plaintiff further submits that the cause of action arose in favour of the plaintiff and against the defendants; that this court has jurisdiction to try the present suit and that the suit has been properly valued for the purposes of jurisdiction and court fees.
Accordingly plaintiff seeks the following relief's:
1. a decree of declaration u/s.31 of Specific Relief Act, 1961 in favour of plaintiff and against the defendants no.1 to 5 thereby cancelling and delivering up by declaring as void the Relinquishment Deed dt.14.08.1981 duly registered with Sub-Registrar, Delhi on 17.08.1981 vide registered document no.4254, Additional Book No.-I, Volume No.4524, Pages 126 to 128 dt.17.08.1981 in favour of Sh.Arvind Kumar Sawhney;
2. a decree of Mandatory Injunction in favour of plaintiff and against the defendants directing the defendants no.1 and 2 to cancel the mutation as carried out by defendants no.1 & 2 in respect of property no.55/8, Old Rajinder Nagar, New Delhi, in favour of Sh.Arvind Kumar Sawhney based on the Relinquishment Deed dt.14.08.1981 duly registered on 6/87 //7// 17.08.1981 vide registered document no.4254, Additional Book No.-I, Volume No.4524, Pages 126 to 128 dt.17.08.1981 in favour of Sh.Arvind Kumar Sawhney;
3. a decree of Mandatory Injunction directing the defendants no.1 & 2 to mutate the suit property no.55/8, Old Rajinder Nagar, New Delhi, in favour of plaintiff to the extent of one half (50%) and in favour of the defendants no.3 to 5 jointly to the remaining one half i.e 50%.
4. a decree of permanent injunction in favour of plaintiff and against the defendants no.1 & 2 restraining the defendants, their agents, servants, assignees from carrying on mutation of the entire suit premises bearing no.55/8, Old Rajinder Nagar, New Delhi, in favour of defendants no.3 to 5 to the entire exclusion of the plaintiff.
5. a decree of permanent injunction in favour of plaintiff and against the defendants no.3 to 5 restraining the defendants, their servants, assignees from forcibly dispossessing the plaintiff from the second floor as well as Barsati to the suit premises bearing no.55/8, Old Rajinder Nagar, New Delhi, forcibly and illegally except due process of law;
6. cost of the suit....
7. any other relief...
3. Defendants no.1 & 2 were duly served and filed the joint W.S. wherein they have raised the preliminary objection that the suit of the plaintiff is hopelessly time barred.
In reply on merits, it is submitted that suit premises 7/87 //8// was substituted in favour of the husband of defendant no.3 on the basis of registered relinquishment deed executed by the plaintiff as well as her mother in favour of the husband of defendant no.3 in the year 1981. It is further submitted that after the death of husband of defendant no.3, the legal heirs of defendant no.3 has applied for substitution of the property in her favour, but the plaintiff filed an objection on 17.03.2003 regarding cancellation of substitution letter and not to transfer the suit property till Hon'ble Court decide the matter in dispute. It is further submitted that answering defendants are bound to consider/accept the registered release deed as the right of the plaintiff had been relinquished in favour of husband of defendant no.3 and it is difficult to defendant no.2, to ensure whether the said release deed was forged document.
Accordingly, it is prayed that the suit filed by the plaintiff be dismissed.
4. Defendants no.3 to 5 also contested the claim of the plaintiff by filing W.S. wherein they took several preliminary objections that the suit has not been properly valued for the purposes of court fees and jurisdiction; that plaintiff is estopped for filing the suit by way of her own act, conduct and 8/87 //9// acquiescence; that suit is barred by time and that suit is barred u/s.41(i) and 41(h) of the Specific Relief Act.
In reply on merits, it is admitted that the suit property was duly registered in the name of Sh.Mulakh Raj Sawhney. It is submitted that plaintiff was initially living alongwith husband of defendant no.3 as a guest but later on plaintiff was permitted by Late Sh.Arvind Kumar Sawhney to occupy the second floor of the suit property out of natural love and affection. It is denied that plaintiff started living in the suit property as her own legal right. It is submitted Late Sh.Arvind Kumar Sawhney constructed the second and barsati floors out of his own financial resources and on the request of plaintiff, he allowed the plaintiff to live separately in said floor. It is submitted that after the death of father of plaintiff, the plaintiff and her mother Smt.Vedwati had of their own volition executed a Relinquishment Deed in favour of Late Sh.Arvind Kumar Sawhney making him the sole and absolute owner of suit property. It is further submitted that plaintiff does not have any share in the suit property after having executed and registered the Relinquishment Deed in 1981 in respect of her share and now it is too late to challenge the said Relinquishment Deed. It is submitted that plaintiff is in occupation of second floor in 9/87 //10// the capacity of a guest or licensee which license was terminated/revoked on account of notice having been given to her by defendant no.3, the successor-in-interest to Late Sh.Arvind Kumar Sawhney and since plaintiff failed to vacate the second floor, the defendant no.2 has been constrained to file a suit for Possession against plaintiff before the Hon'ble High Court of Delhi which is still pending. It is submitted that plaintiff by her own conduct confirmed that she executed the Relinquishment Deed voluntarily. It is further submitted that plaintiff had also signed the agreement dt.16.11.1988 executed by Late Sh.Arvind Kumar Sawhney in the capacity of the owner of the property bearing no.55/8, Old Rajinder Nagar, New Delhi in respect of first floor in favour of Smt.Kunti Rani to which plaintiff has been the witness. Moreover, plaintiff also executed on 14.08.1988 an affidavit to the effect that her brother is the exclusive owner of the property and that Late Sh.Arvind Kumar Sawhney had entered into an agreement to which plaintiff had absolutely no objection. It is further submitted that Smt.Vedwati had executed the Relinquishment Deed voluntarily of her own volition in favour of her son Late Sh.Arvind Kumar Sawhney only. It is submitted that there is no forgery, impropriety or fraud committed by the defendant in 10/87 //11// execution of Relinquishment Deed as this document was executed by them voluntarily of their own independent volition. It is denied that the plaintiff has 50% of the undivided share of the suit property. Accordingly, it is prayed that the suit of the plaintiff be dismissed with cost.
5. Subsequently, replications to the Written Statements of the defendants no.1 & 2 and defendants no.3 to 5 were filed wherein the plaintiff has denied the allegations made in the Written Statements and reiterated the averments contained in the plaint.
6. After the completion of pleadings following issues were framed by the Ld.Predecessor of this Court on 04.06.2004:
1. Whether suit of the plaintiff is barred by limitation?OPD 1,2,3,4 & 5
2. Whether suit has not been valued properly for the purpose of Court fee?OPD
3. Whether Mrs.Samriti Bhasin had executed the affidavit dt.16.11.1988 and also witnessed agreement to sell dt.18.11.88, General Power of Attorney dt.18.11.88 and also witnessed Will of Late Sh.A.K. Sawhney dt.18.11.88?
11/87
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4. Whether plaintiff and Mrs.Vedwati had executed Relinquishment Deed in favour of Sh.Arvind Sawhney on 14.08.1981?OPD
5. Whether plaintiff is estopped by her conduct from filing of the instant suit?OPD
6. Whether plaintiff is entitled to decree of declaration as prayed for?OPP
7. Whether plaintiff is entitled to decree of Mandatory Injunction as prayed for in prayer clause no.2 & 3?
8. Whether plaintiff is entitled to decree of permanent injunction as prayed for in para no.4 & 5 of the prayer clause?
9. Relief.
7. Parties led their evidence.
On behalf of plaintiff, plaintiff herself deposed as PW1; Sh.Ascharj Lal Sawhney deposed as PW2; Sh.Raman Kumar Sawhney deposed as PW3; Sh.Rajiv Wadhwa deposed as PW4; Ms.Santosh Malik deposed as PW5; Sh.Vinod Sharma deposed as PW6; Sh.Chander Prakash Anand deposed as PW7; Smt.Raj Dulari Sawhney deposed as PW8 and Sh.Gagan Chandiok deposed as PW9.
On behalf of defendants no.3 to 5, Sh.T.R. Nehra deposed as DW1; Sh.Satya Pal deposed as DW2; defendant no.3 deposed as DW3; Sh. H.V. Chauhan, Advocate, deposed 12/87 //13// as DW4 and Sh.Virender Kumar deposed as DW5.
Defendants no.1 and 2 had not led any evidence, though they filed the written statement.
8. PW1/plaintiff in evidence by way of affidavit almost supported the averments made in the plaint and got exhibited the certified copy of Relinquishment Deed dt.14.08.1981 as Ex.P-1; the letter dt.20.02.2003 sent by plaintiff Deputy Land & Development Officers as Ex.PW1/1; the another letter dt.17.03.2003 sent to Deputy Land & Development Officer as Ex.PW1/2; the inspection slips dt.07.05.2003, 28.05.2003 and 29.10.2003 as Ex.PW1/3 to Ex.PW1/5 respectively; the letter dt.28.05.2003 from Deputy Land & Development Officer received by plaintiff as Ex.PW1/6; the legal notice dt.31.05.2003 sent to defendant no.1 as Ex.PW1/7; the notice dt.02.08.2003 served by defendant no.3 as Ex.PW1/8 and the envelope thereof as Ex.PW1/9; the reply dt.18.08.2003 to the said notice as Ex.PW1/10; the carbon copy another letter dt.04.09.2003 sent by plaintiff to defendant no.1 as Ex.PW1/11 and the electricity bill showing the name of father of plaintiff as Ex.PW1/12.
Plaintiff/PW1 also examined in rebuttal and 13/87 //14// deposed that GPA dt.18.11.1988 Ex.PW1/D2 and Will Ex.PW1/D3 does not bear her signatures and she never visited the Office of Sub-Registrar to get these documents registered. PW1 further deposed that she continue to be the joint owner in the suit property alongwith her deceased brother and has never deposed any affidavit before Magistrate nor has signed any documents which are Ex.PW1/D1 to Ex.PW1/D4.
In cross examination by advocate of defendants no.3 to 5, PW1 deposed that in 1983 she started residing in Delhi. PW1 admit that she residing in the suit property in 1984. PW1 deposed that she live on ground floor with her brother till 1991 and thereafter she shifted to 2nd floor. PW1 deposed that her brother had let out the first floor to Bank of India in 1983. PW1 admit that since 1983 Barsati had been let out to Syndicate Bank. PW1 denied that first floor was sold to Smt.Kunti Rani after Bank of India vacated. PW1 deposed that Smt.Kunti Rani told that she had purchased the floor. PW1 denied her signature at point A on Ex.PW1/D1, Ex.PW1/D2, Ex.PW1/D3 and Ex.PW1/D4. PW1 admit that in 1984 her father had already expired but denied that he had requested her brother to allow her to stay there temporarily as licensee. PW1 deposed that it was in her knowledge that in 1998 1st floor 14/87 //15// had been sold by her brother to Smt.Kunti Rani Dureja and she did not receive any portion of sale consideration. PW1 deposed she is not aware whether any municipal site plan was got sanctioned for first and second floors and she has not signed any application for getting the same sanctioned. PW1 denied that his brother had constructed the first and second floor out of his own funds. PW1 submitted that she had contributed some money in cash, however she cannot tell the exact sum. PW1 deposed that money received by brother used to be deposited in the bank account in their name and he used to withdraw and make payment. PW1 submitted that this was not disclosed by her brother to her and she never checked up the bank account. PW1 deposed that she cannot show any document to substantiate her plea that money was being deposited by her brother in the bank account and subsequently withdrawn. PW1 deposed that she never paid house tax for first, second floor and barasti floors and she used to contribute. PW1 deposed that her mother has studied upto 8th class and she used to sign in Hindi. PW1 deposed that signatures at point A, B & C on Mark-X are appears to be of her mother. PW1 denied that they are genuine attested signature of her Late mother. PW1 deposed that she cannot say anything 15/87 //16// whether there is any kind of similarity for the signature appearing on Ex.PW1/D1 and D2 and Relinquishment Deed Mark Y which runs into 3 pages. PW1 deposed that it is not in her knowledge that property has been mutated by L & DO in favour of her brother in 1982. PW1 admit that 2nd and barsati floors were always let out by her brother. PW1 submitted that as he was exclusively looking after and for this same reason he was negotiating and entering into agreement with tenants. PW1 deposed that her brother used to accept the rent. PW1 admit that at the time of letting of the property and receipt of rent she used to be lived alongwith her brother at ground floor. PW1 deposed that she never questioned her brother as to why he himself was letting out and receiving the rent without involvement as she was also co-owner. PW1 deposed that she had very cordial relations with her brother who treated her like as daughter. PW1 admit the correctness of Ex.PW1/D3, D4 and D5. PW1 deposed that she came to know about mutation at the time of death of her brother, from her bhabhi i.e. defendant no.3 on or about January/February 2003. PW1 admit that during lifetime of her brother she did not demand any share in the property. PW1 deposed that she wrote to L&DO for the first time on 17.03.2003 and she had also written 16/87 //17// in February, 2003 to L&DO. PW1 admit that defendant no.3 to 5 have filed suit for mutation against her in the Hon'ble High Court of Delhi, however denied that present suit was filed as counter blast. PW1 deposed she had no objection to the sale of first floor by her brother. PW1 deposed that she was not present in Delhi on 14.08.1981 and she does not have any document to show that she was not in Delhi on that date. PW1 further deposed that she used to frequently visit Delhi even when she was staying with her husband. PW1 further deposed that her mother did not visit office of Sub-Registrar on 14.08.1981 and if she visited she would have positively told her about the visit. PW1 further deposed that her mother had not put any thumb impression at the time of execution of Release Deed. PW1 deposed that para no.25 of the plaint is dictated and typed out by her advocate. PW1 denied that it was in her knowledge in the year 1982 itself that property in question was mutated in the name of her brother on the basis of alleged Release Deed executed by her brother.
Cross of PW1 on behalf of L&DO treated as nil as despite opportunity L&DO failed to cross examine PW1.
PW1 in cross examination in rebuttal admit that she is not a handwriting expert. PW1 deposed that her mother 17/87 //18// used to sign in Hindi language and she has not filed document signed by her mother in this case. PW1 denied that she signed as one of attesting witness on the Will of her brother and POA and sworn her affidavit before the SDM. PW1 denied that the report of handwriting expert is correct. PW1 admit that she has not engaged any expert in this case.
9. PW2 Sh.Ascharj Lal Sawhney in evidence by way of affidavit deposed that he is the real Uncle (Chacha) of the plaintiff. PW2 deposed that Sh.Mulkh Raj Sawhney was the owner of the house no.55/8, Old Rajinder Nagar, New Delhi-60 and after the death of Sh.Mulkh Raj Sawhney, his wife, son and daughter (plaintiff) became joint owners of suit property. PW2 deposed that after the death of wife of Sh.Mulkh Raj Sawhney, her son and daughter (plaintiff) became the owner of the suit property and they started living together therein. PW2 further deposed that he never heard from Sh.Arvind Kumar Sawhney or from any other person that plaintiff and her deceased mother ever executed any Relinquishment Deed in favour of brother of plaintiff. PW2 deposed that plaintiff was born at suit property and since 1983 she has been residing in the suit property as one of the owner of the said house.
18/87
//19//
PW2 in cross examination by advocate of
defendants no.3 to 5 deposed that plaintiff and her brother were living together since about 1984-85, however he cannot tell the year in which plaintiff had got married. PW2 deposed that he cannot tell for how many years plaintiff stayed on the ground floor. PW2 deposed that on enquiries Sh.Arvind told him that both he and plaintiff were owners of the property half each. PW2 deposed that it is not in his knowledge that first floor of the property was ever sold by Sh.Arvind. PW2 deposed that the first floor was under tenancy of some bank employee but he does not know who used to realise the rent. PW2 deposed that he cannot tell as to when 2nd floor was built. PW2 deposed that Sh.Arvind had informed that he had taken loan from some bank. PW2 deposed that it is not in his knowledge that plaintiff and her mother had executed any Relinquishment Deed in favour of Sh.Arvind.
Cross of PW2 on behalf of L&DO treated as nil as despite opportunity L&DO failed to cross examine PW2.
10. PW3 Sh.Raman Kumar Sawhney in evidence by way of affidavit deposed that he is Cousin (son of Real Massi of plaintiff) of the plaintiff. PW3 deposed that Sh.Mulkh Raj 19/87 //20// Sawhney was the owner of the house no.55/8, Old Rajinder Nagar, New Delhi-60 and after the death of Sh.Mulkh Raj Sawhney, his wife, son and daughter (plaintiff) became joint owners of suit property. PW3 deposed that after the death of wife of Sh.Mulkh Raj Sawhney, her son and daughter (plaintiff) became the owner of the suit property and they started living together therein. PW3 further deposed that he never heard from Sh.Arvind Kumar Sawhney or from any other person that plaintiff and her deceased mother ever executed any Relinquishment Deed in favour of brother of plaintiff. PW3 deposed that plaintiff was born at suit property and since 1983 she has been residing in the suit property as one of the owner of the said house.
In cross examination by advocate of defendants no.3 to 5, PW3 deposed that Sh.Arvind used to tell events of his family and financial dealings. PW3 further deposed that Sh.Arvind had informed him around 1990 that the house had been mortgaged, however PW3 deposed that he is not aware of the exact amount but it somewhere around Rs.15 lacs and deposed that it might be correct that Sh.Arvind had taken only Rs.2.5 lacs from the bank. PW3 deposed that first floor was under the tenancy of Manager of Syndicate Bank and 20/87 //21// thereafter many more tenants were inducted and Sh.Arvind used to collect rent. PW3 further deposed that second floor remained with the plaintiff since 1983. PW3 denied that plaintiff started staying on the 2nd floor only after 1990. PW3 deposed that first floor has been sold by Sh.Arvind approx. 10 years back. PW3 denied that Sh.Arvind was exclusive owner. PW3 deposed that plaintiff did not sign any sale document . PW3 further deposed that Sh.Arvind thereafter, repurchased the property back and sale documents were destroyed by them. PW3 deposed that plaintiff started living in suit property in 1983 and for 3-4 years she stayed on ground floor with Sh.Arvind and then she shifted to 2nd floor. PW3 deposed that he is familiar with the signature of his father Sh.Om Prakash Sawhney and Ex.PW1/D1, D2, D3, D4 and D5 bear signatures of his father at point A. PW3 deposed that Sh.Rakesh Sawhney is his brother and he is not sure whether signatures of his brother on Mark-X appear at point A or not. PW3 deposed that 2nd floor was constructed by plaintiff and Sh.Arvind jointly and plaintiff paid money on many occasions and plaintiff used to pay by cheque and again submitted that by cash. PW3 deposed that he does not remember the year in which such payments were made, however submitted that it 21/87 //22// was during construction. PW3 further deposed that payment used to be made inside the house and he used to be present at that time there and no receipt used to be issued. PW3 deposed that he never heard about the Release Deed.
Cross of PW3 on behalf of L&DO treated as nil as despite opportunity L&DO failed to cross examine PW3.
11. PW4 Sh.Rajiv Wadhwa in evidence by way of affidavit deposed that he is neighbourer of plaintiff. PW4 deposed that Sh.Arvind Kumar Sawhney told him that he and plaintiff are the joint owners of suit property and that he shortly get the formal documents prepared so that the suit property is formally partitioned. PW4 further deposed that plaintiff is one of the co-owner of the suit property. PW4 further deposed that he lastly met Sh.Arvind Kumar Sawhney on 26.10.2002 and he told to him that he is interested to let out the first floor and further told that he will get the formal documents prepared formally partitioning the suit property. PW4 further deposed that he never heard from Sh.Arvind Kumar Sawhney or from any other person that plaintiff and her deceased mother ever executed any Relinquishment Deed in favour of brother of plaintiff. PW4 deposed that plaintiff was born at suit property 22/87 //23// and since 1983 she has been residing in the suit property as one of the owner of the said house.
In cross examination by advocate of defendants no.3 to 5, PW4 deposed that Sh.Arvind used to tell him that there was no differences between him and plaintiff and that he had very cordial relations with her. PW4 deposed that Sh.Arvind never told him anything about mortgage of house and about sale of first floor. PW4 deposed that plaintiff staying in the house since 1981/1982 and she is staying on the 2nd floor since beginning. PW4 deposed that Sh.Arvind had not informed him that they were going to be partitioned the suit property, however submitted that Sh.Arvind told him about the mutation.
Cross of PW4 on behalf of L&DO treated as nil as despite opportunity L&DO failed to cross examine PW4.
12. PW5 Ms.Santosh Malik in evidence by way of affidavit deposed that she is family friend of the parties. PW5 deposed that Sh.Mulkh Raj Sawhney was the owner of the house no.55/8, Old Rajinder Nagar, New Delhi-60 and after the death of Sh.Mulkh Raj Sawhney, his wife, son and daughter (plaintiff) became joint owners of suit property. PW5 deposed 23/87 //24// that after the death of wife of Sh.Mulkh Raj Sawhney, her son and daughter (plaintiff) became the owner of the suit property and they started living together therein. PW5 further deposed that she never heard from Sh.Arvind Kumar Sawhney or from any other person that plaintiff and her deceased mother ever executed any Relinquishment Deed in favour of brother of plaintiff. PW5 deposed that plaintiff was born at suit property and since 1983 she has been residing in the suit property as one of the owner of the said house.
PW5 in cross examination by advocate of defendants no.3 to 5, deposed that Sh.Arvind told her that he and plaintiff were co-owners of the property. PW5 deposed that Sh.Arvind had sold the first floor of the house to old lady who has since died. PW5 deposed that she cannot say whether plaintiff had signed the sale documents since they were never executed in her presence. PW5 denied that plaintiff and her mother had relinquished their share in favour of Sh.Arvind. PW5 deposed that mother of plaintiff had told her that both plaintiff and Sh.Arvind are co-owners and would succeed the property after her death. PW5 deposed that in 1983 construction was raised and then plaintiff started residing in 2nd floor and before that she was living in Bihar. 24/87
//25// Cross of PW5 on behalf of L&DO treated as nil as despite opportunity L&DO failed to cross examine PW5.
13. PW6 Sh.Vinod Sharma in examination in chief deposed that he know the parties since 19-20 years and he was on visiting terms of parties. PW6 deposed that Sh.Mulkh Raj Sawhney was the owner of the house no.55/8, Old Rajinder Nagar, New Delhi-60 and after the death of Sh.Mulkh Raj Sawhney, his wife, son and daughter (plaintiff) became joint owners of suit property. PW6 deposed that after the death of wife of Sh.Mulkh Raj Sawhney, her son and daughter (plaintiff) became the owner of the suit property and they started living together therein. PW6 further deposed that he never heard from Sh.Arvind Kumar Sawhney or from any other person that plaintiff and her deceased mother ever executed any Relinquishment Deed in favour of brother of plaintiff. PW6 deposed that plaintiff was born at suit property and since 1983 she has been residing in the suit property as one of the owner of the said house.
In cross examination by advocate of defendants no.3 to 5, PW6 deposed that he know the parties since his wife is friend of plaintiff. PW6 deposed that plaintiff and her brother 25/87 //26// were owners of suit property and they had cordial relations and after his death the defendants asked the plaintiff to vacate, while she asserted her. PW6 deposed that Ms.Deepa who present in the Court had asked the plaintiff to vacate. PW6 deposed that he does not know father of plaintiff. PW6 deposed that he is not aware of execution of any release deed by plaintiff and her mother. PW6 deposed that he has not seen any document of any ownership of property. PW6 deposed that plaintiff is staying on the 2nd floor for the last about 20 years, however again submitted that 12/13 years.
14. PW7 Sh.Chander Prakash Anand was examined and cross examined in the presence of Local Commissioner appointed vide order dt.27.04.2005.
In evidence by way of affidavit PW7 deposed that he is Maternal Uncle (Mama) of the plaintiff. PW7 deposed that Sh.Mulkh Raj Sawhney was the owner of the house no.55/8, Old Rajinder Nagar, New Delhi-60 and after the death of Sh.Mulkh Raj Sawhney, his wife, son and daughter (plaintiff) became joint owners of suit property. PW7 deposed that after the death of wife of Sh.Mulkh Raj Sawhney, her son and daughter (plaintiff) became the owner of the suit property and 26/87 //27// they started living together therein. PW7 further deposed that he never heard from Sh.Arvind Kumar Sawhney or from any other person that plaintiff and her deceased mother ever executed any Relinquishment Deed in favour of brother of plaintiff. PW7 deposed that plaintiff was born at suit property and since 1983 she has been residing in the suit property as one of the owner of the said house.
In cross examination by advocate of defendants no.3 to 5, PW7 deposed that plaintiff is daughter of his Cousin Sister and plaintiff got married in 1977-98. PW7 further deposed that at the time of marriage, the husband of plaintiff was residing in Jamna Nagar (Haryana), however, PW7 deposed that he does not remember as to where plaintiff went after marriage. PW7 submitted that husband of plaintiff was posted at various places from time to time. PW7 deposed that Sh. Arvind told him about sale of first floor, however, PW7 does not remember the date or the name of the purchaser. PW7 further deposed that Sh. Arvind told him that first floor was sold by him and plaintiff. PW7 deposed that the plaintiff and Sh. Arvind told him about repurchase of first floor. PW7 deposed that plaintiff might have received the sale consideration of first floor, when it was sold, however, he does 27/87 //28// not know the amount. PW7 denied that first floor was solely sold by Sh. Arvind, again deposed that the consent of plaintiff might have been taken. PW7 deposed that second and third floors have been on rent and Sh. Arvind used to let out the property, however submitted that it was done with the consent of plaintiff. PW7 further deposed that Sh. Arvind had taken the consent of plaintiff on several occasions in his presence. PW7 denied that a Release Deed was executed by the mother and plaintiff in favour of Sh. Arvind in 1981. PW7 deposed that Sh. Arvind himself told him about taking loans, however he does not know as to what loan he had taken and the amount of such loans. PW7 admit that Sh. Arvind never discussed about the amount of such loans with him.
15. Smt.Raj Dulari Sawhney was also examined as PW8 and cross examined in the presence of Local Commissioner appointed vide order dt.27.04.2005.
In evidence by way of affidavit, PW8 deposed that she is Real Aunt (Massi) of plaintiff. PW8 deposed that at the time of death, her sister Smt.Vedwati neither told her about any 'farakhti-nama' which she executed in favour of her son nor about Smt.Vedwati ever told her that she wants to give suit 28/87 //29// property to his son. PW8 deposed that since 1983 plaintiff is residing in the suit property.
In cross examination by the advocate of defendants no. 3 to 5, PW8 admit that Sh. Arvind had sold the first floor of the suit property to Smt. Kunti Rani, however she does not remember the year of sale and she does not know if Sh. Arvind had repurchased the same in 1995. On a specific question, PW8 answered that she cannot identify the signatures of her husband at point 'A' on Ex.PW1/D1 to Ex.PW1/D5. PW8 deposed that Sh. Rakesh Sawhney is her son but she cannot identify his signatures. On a specific question, PW8 answered that signatures of her sister Smt. Vedwati on mark 'Y' does not seem to be that of Smt. Vedwati, however again deposed that the same are of Smt. Vedwati and again deposed that the same are not of Smt. Vedwati. PW8 deposed that Sh. Arvind used to take rent from tenants. PW8 deposed that she does not know the meaning of 'Farakhti-nama' at page 2(line1) of her affidavit Ex.PW8/A. PW8 deposed that husband of plaintiff is an Engineer and earned lot of money. PW8 deposed that she does not know the meaning of word 'vadi' as used in her affidavit in para 1. PW8 denied that plaintiff and her mother release their share in the suit property and that Sh. Arvind was 29/87 //30// sole and absolute owner of the suit property. PW8 admit that Smt. Vedwati was mentally sound at the time of her death and the same is the reply of PW8 with respect to physical health of Smt. Vedwati. PW8 further deposed that the plaintiff and Smt. Vedwati might have executed a document before Sub- Registrar, however again submitted that she does not remember the nature of document.
16. PW9 Sh.Gagan Chandiok in evidence by way of affidavit deposed that he is Cousin of plaintiff. PW9 deposed that Sh.Mulkh Raj Sawhney was the owner of the house no.55/8, Old Rajinder Nagar, New Delhi-60 and after the death of Sh.Mulkh Raj Sawhney, his wife, son and daughter (plaintiff) became joint owners of suit property. PW9 deposed that after the death of wife of Sh.Mulkh Raj Sawhney, her son and daughter (plaintiff) became the owner of the suit property and they started living together therein. PW9 further deposed that he never heard from Sh.Arvind Kumar Sawhney or from any other person that plaintiff and her deceased mother ever executed any Relinquishment Deed in favour of brother of plaintiff. PW9 deposed that plaintiff was born at suit property and since 1983 she has been residing in the suit property as 30/87 //31// one of the owner of the said house.
In cross examination by advocate of defendants no.3 to 5, PW9 denied that Sh. Arvind did not use to discuss his problems with him. PW9 deposed that he met Sh. Arvind for the last time 2 days before his death and he told to him that he would like to evict the tenant as they were feeling crunch of space. PW9 deposed that probably the name of tenant was Mr. Roy who had been staying for about 2/3 years and he used to work in some Newspaper. PW9 deposed that plaintiff and her mother never discuss with him about execution of any documents in favour of anybody else.
17. DW1 Sh. T.R. Nehra, the Forensic Document Consultant in examination in chief deposed that he is working as Forensic Document Consultant w.e.f. January 2004 and prior to this he worked in Central Forensic Science Laboratory, CBI, New Delhi. DW1 deposed that in the present case, as per request of defendant no.3 he examined the original questioned signatures of plaintiff and Smt. Vedwati in the Court on 04.05.2005 and also got these signatures photographed. DW1 further deposed that he conducted the detailed scientific examination of both questioned and admitted signatures of 31/87 //32// plaintiff as well as of Smt. Vedwati and the details of documents examined by him have been mentioned in his report no. TRN-2005/D-33 dt. 02.07.2005 and after careful examination of all these documents he arrived at the conclusion. The report dt. 02.07.2005 is Ex.DW3W1/A and his bio-data as Ex.DW3W1/B. The two justaposed photographic charts are Ex.DW3W1/C and Ex.DW3W1/D. The negatives of both questioned and admitted signatures which are 45 in numbers are Ex.DW3W1/E. DW1 concluded/opined that "writer Smt. Samriti Bhasin of the admitted signatures, the photographs of which bear the marking as A1 to A15 is the person, who wrote the questioned signatures, the photographs of which bear the markings as Q1, Q3, Q6, Q8 and Q10 to Q16."
In cross examination DW1 admit that he was engaged by defendant no.3. DW1 further deposed that he compared the signatures on questioned documents with various admitted documents, the photographs of which bear the marking from A1 to A15 and the details of the same were also given by him in his report. He further deposed that he made use of scientific aids such as various magnifiers of different magnifications, torch magnifier, measuring 32/87 //33// instruments and ultra-violet rays. DW1 denied that he did not examine the pressure of strokes of signatures as well as their flow. DW1 further denied that the admitted signatures submitted to him showed any evidence of forgery. DW1 further denied that his report is incorrect.
18. DW2 Sh. Satya Pal, Record Attendant in the office of Delhi Achieves in cross examination deposed that he has brought the summoned record pertaining to Relinquishment Deed dt. 14.08.1981 which is registered against no. 4254, additional book no.1, volume no.4524 on pages 126 to 128 dt. 17.08.1981 and the Relinquishment Deed is Ex.DW3W2/A. In cross examination DW2 deposed that signature as well as thumb impression is mandatory as per procedure and there are two thumb impressions and the name of Smt. Vedwati is mentioned against both thumb impressions.
19. DW3/defendant no.3 in evidence by way of affidavit almost deposed on the same lines as mentioned in the W.S. and got exhibited the original Mutation Letter as Ex.D3W1/1; certified copy of judgment of Hon'bleHigh Court of Delhi as Ex.D3W1/2; the copy of plaint filed in suit before Hon'bleHigh 33/87 //34// Court of Delhi as Mark 'B';
the copy of Civil Writ Petition no.5420/2003 as Mark 'A' and the original specimen signature of Smt. Vedwati as Ex.D3W1/4.
In cross examination DW3 deposed plaintiff had filed an appeal against order Ex.D3W1/2 which was decided vide order Ex.DW3/PX1 dt.08.12.2004 and the suit for possession is still pending the Hon'bleHigh Court of Delhi. DW3 further deposed that her husband Sh. Arvind Sawhney, she herself and one person known to her husband was accompanied the Releasers. DW3 further deposed that her mother-in-law had told to Counsel Sh. H.B. Chauhan what is to be drafted; that it was got typed at Asaf Ali Road, outside the office of Sub-Registrar Delhi; that the judicial paper might have been purchased by her husband Sh. Arvind Sawhney; that her mother-in-law had put her signatures on the Release Deed firstly, thereafter plaintiff put her signatures and thereafter witnesses put their signatures; that Release Deed was got typed on the same day i.e.14.08.1981; that thumb impressions were not put in her presence; that Advocate had seen the Ration Card which was taken in by her mother-in-law; that she does not remember whether she had mentioned in W.S. that she had accompanied the Releasers at the time of registration 34/87 //35// of said Release Deed; and that another witness Sh. Tuteja, Advocate had also put his signatures on Release Deed but she did not know Mr. Tuteja earlier. DW3 denied that signatures on the Release Deed are not those of Smt. Vedwati and the plaintiff. DW3 further deposed that in the year 1982-83 the roof of ground floor was replaced and first, second and barsati floors were added by her husband, however she does not know how much amount was spent for said construction. DW3 deposed that her husband had not taken any loan from any Bank for carrying out additions and alterations, however submitted that her husband took loan from his employer for said purpose and documents Ex.DW3/PX and Ex.DW3/PY are the documents regarding taking of loan. DW3 admit that Ex.DW3/PX is the photocopy for getting the loan from the employer and is dt.1983. DW3 denied that Ex.DW3/PY does not relate to said loan. DW3 deposed that at the time of additions and alterations plaintiff was not living with them. DW3 in further cross examination denied that 50% of the total expenses were paid by the plaintiff for addition and alteration in the suit premises. DW3 denied that mutual agreement took place between her husband and plaintiff to the effect that after renovation and addition in the suit premises, her husband shall 35/87 //36// remain at ground floor and plaintiff will remain at second floor. DW3 deposed that L&DO mutated the suit premises in the name of her husband in the year 1983 and said mutation is a subject matter before the Hon'bleHigh Court of Delhi. DW3 deposed that at the time of execution of Relinquishment Deed by her daughter, the barsati floor was also in possession of plaintiff, however submitted that plaintiff forcible put her lock on barsati floor. DW3 admit that during the lifetime of her father- in-law her husband used to deposit the house tax and other bills. DW3 deposed that plaintiff was living with their family on ground floor since 1985 and in 1991 the plaintiff shifted to second floor. DW3 deposed that she is not aware whether her husband gave any legal notice to the plaintiff for vacation of the suit premises and that whether her husband filed any suit against the plaintiff for vacation the suit premises during his lifetime. DW3 deposed that since plaintiff is the real sister of her husband, therefore she was allowed to live in the suit premises as guest, however denied that plaintiff was not living as a guest but as a co-owner. DW3 deposed that she is not aware whether her husband had taken any permission from L&DO before selling the first floor and that whether her husband informed L&DO about the sale of first floor. DW3 36/87 //37// admit that her husband pledged the suit property to Syndicate Bank for taking loan, however she is not aware the extent of loan taken and that whether permission from L&DO had taken for pledging the suit property. DW3 deposed that the property was got released to her after her husband'sdeath by paying the amount but she does not remember whether she had paid Rs.5 lacs, Rs.10 lacs, Rs.15 lacs or Rs.20 lacs to the Syndicate Bank for getting the suit property released. DW3 deposed that her husband took loan for constructing the suit property. DW3 denied that plaintiff as well as Smt. Vedwati never executed and got registered the Relinquishment Deed Ex.DW3W2/A in favour of her husband. DW3 denied that plaintiff is the co-owner and is having one half share in the suit property.
20. DW4 Sh. H.V. Chauhan, Advocate, in examination in chief deposed that he was doing practice in the office of Sub-Registrar. DW4 further deposed that he had drafted the Release Deed Ex.DW3W2/A on the instructions of the Releasers and the Releasers had signed the said deed in his presence. DW4 further deposed that he also witnessed the said deed at point A and the another attesting witness was Mr. 37/87 //38// D.C. Tuteja. DW4 further deposed that said deed was got registered in office of Sub-Registrar in his presence. DW4 deposed that as per rules non-graduate executant is also to put thumb impressions on the document and in case of graduate executant the putting of thumb impressions is not mandatory.
In cross examination DW4 deposed that he had been approached by the Releasers about 3-4 days before the registration of said deed and Smt. Vedwati had briefed him about the execution of Release Deed. DW4 deposed that he had seen the joint ownership documents like death certificate and other registered documents and he had not seen any document verifying the identity of executants before drafting the Release Deed, however submitted that he had enquired from the Releasers about the relationship. DW4 deposed that he got the document typed one day prior to registration and the details of the property were told to me by the Releasers. DW4 deposed that he does not remember whether any male relative of the Releases came with the Releasers, however one neighbour accompanied with them. DW4 denied that neither Smt. Vedwati nor the plaintiff went to the office of Sub- Registrar on 14.08.1981 for getting deed registered; that they 38/87 //39// had not signed the deed in his presence; and that they had not signed in the presence of Sub-Registrar as well as in the presence of Second Attesting witness. DW4 further denied that Mr.Anand Sawhney came with two fictitious lady for getting the deed registered and that one Mr. Arvind Sawhney, the name of whom he earlier mentioned by him as Mr. Anand Sawhney came without two fictitious lady for getting the deed registered.
21. DW5 Sh. Virender Kumar from Sub-Registrar, Asif Ali Road, New Delhi in examination in chief deposed that he brought the summoned record pertaining to GPA and Will dt.18.11.1988 executed by Sh. A.K. Sawhney. DW5 further deposed that GPA Ex.PW1/D2 was having the registration no.6923, book no.4, Vol.1540 from pages 13 to 14 on 18.11.1988 and Will Ex.PW1/D3 was having the registration no.5354, book no.3, Vol.474 at page 186.
In cross examination DW5 deposed that both GPA and Will do not have the thumb impressions of witness. DW5 deposed that Sub-Registrar do not ask for NOC of the L&DO in case property belongs to the L&DO at the time of registration of any document pertaining to that property. 39/87
//40//
22. Final arguments heard.
23. In the arguments with respect to issue no.1, Advocate of plaintiff stated that plaintiff filed the present suit u/s.31 of Specific Relief Act for cancellation of Release Deed dt.14.08.1981 and for mandatory and permanent injunctions as plaintiff and her mother never executed the said Release Deed in favour of Sh.Arvind and after the death of her mother, the plaintiff and her brother Sh. Arvind became owners of the suit property to the extent of 1/2 share each. It is submitted that plaintiff was not aware about existence of Relinquishment Deed dt.14.08.1981 and only came to know during January/ February, 2003. The plaintiff also denied her signatures on Agreement to Sell dt.16.08.1988 Ex.PW1/D1, GPA dt.18.11.1988 Ex.PW1/D2, Will dt.18.11.1988 Ex.PW1/D3 and Affidavit dt.16.11.1988 Ex.PW1/D4. It is further stated that there was no need for the plaintiff to declare through affidavit on 16.11.1988 that her brother is the owner of the suit property. It is argued that if any such declaration was required by his brother that was as per the law and procedure either through Court or through public notice and why plaintiff shall 40/87 //41// sworn such type of affidavit in an individualistic manner. Hence, it is clearly shows plaintiff never executed any Relinquishment Deed in favour of her brother. It is further submitted that from the report of CFSL it is apparent that as per handwriting expert of CFSL no authentic opinion can be given on specimen documents on the basis of specimen signatures but the handwriting expert engaged by defendants submitted that specimen signatures are genuine. It is further stated that it is held by Hon'bleHigh Court of Delhi that no weightage can be given to the report of the handwriting expert engaged by a party as it is obvious that such handwriting expert shall give the report only in support of claim of the party who has engaged him. It is further stated that report of handwriting expert cannot be relied upon as said report prima facie suffers from illegality and impropriety, which is apparent from the face of the record itself. It is further submitted that PW1 to PW9 clearly and specifically deposed that they were not aware about the execution of any such Relinquishment Deed. Hence, it is stated that it is clear that plaintiff came to know for the first time about execution of Relinquishment Deed dt.14.08.1981 only on 12.03.2003 when plaintiff went to office of defendant no.2 in order to ascertain the latest status of 41/87 //42// mutation of suit property. It is further stated that plaintiff has filed the present suit 19.11.2003. It is submitted that since the limitation period is three years from the date of knowledge of such forgery and as such, the present suit has filed by plaintiff within the limitation. Accordingly, it is stated that issue no.1 be decided in favour of plaintiff and against the defendants.
With respect to issue no.2 it is stated by advocate of plaintiff that u/s.31 of the Specific Relief Act, the suit for Declaration and Cancellation of document has to be filed on the basis of value of the document which is proposed to be got cancelled. The factum of possession of suit property as well as market value of suit property are not relevant. It is submitted that value of Relinquishment Deed which is prayed to be declared as null and void and cancelled by this Court is Rs.10/- and court fees has to be paid as per stamp duty paid by the executant and the same has been paid. It is further stated that plaintiff has paid the requisite court fees for the relief of declaration and permanent injunction. Accordingly, it is stated that the suit has been properly valued for the purposed of court fees and jurisdiction and the issue no.1 be decided in favour of plaintiff.
With respect to issue no.3 it is stated by advocate of 42/87 //43// plaintiff that in cross examination the plaintiff was confronted with agreement to sell dt.16.11.1988 (Ex.PW1/D1), the GPA dt.18.11.1988 (Ex.PW1/D2) and the Will dt.18.11.1988 (Ex.PW1/ D4) and plaintiff after having seen the signatures appeared on Ex.PW1/D1 to D3 as marginal witness and on Ex.PW1/D4 as deponent, has denied the same. It is further submitted that there was no need/occasion for the plaintiff to put signatures as marginal witnesses. It is submitted that plaintiff was fully aware that she is the owner of 1/2 undivided share of suit property. However, in these documents it has been mentioned that Sh. Arvind Sawhney is the exclusive owner of the suit property, then why and under what circumstances, the plaintiff shall put her signatures on such document which snatched her right over the suit property. Hence, it is stated that signatures of plaintiff on Ex.PW1/D1 to D4 have been forged by Sh. Arvind Sawhney. It is submitted that Ex.PW1/D1 to D4 are silent about source of title having acquired by Sh. Arvind Sawhney. It is stated that PW2 to PW9 who are closely related to the parties had no knowledge about execution of any such documents by plaintiff and her mother in favour of Sh. Arvind Sawhney. With respect to Affidavit Ex.PW1/D4 it is stated that plaintiff denied her signatures on 43/87 //44// said document and CFSL has expressed its inability to given any authentic opinion on genuineness unless some other documents are furnished while DW1 has given his opinion that said signatures are those of plaintiff. Hence, it is submitted that reasons given by DW1 in his report Ex.DW3W1/A to E are incorrect. Moreover, there was no need for plaintiff to declare Sh. Arvind Sawhney by way of said affidavit the exclusive owner of suit property and no document or witness has been examined by defendants no.3 to 5 to substantiate the claim. It is further stated that Agreement to Sell Ex.PW1/D1 has not been notarized and no such public attorney who had attested the same has been summoned and examined to prove the said document. It is further stated that defendants no.3 to 5 through the evidence of PW5 failed to prove the genuineness of GPA and Will rather the preponderance of the evidence clearly shows that the document Ex.PW1/D4 does not bear the signatures of plaintiff. Accordingly, it is stated that issue no.3 be decided in favour of plaintiff.
With respect to issue no.4, it is stated by advocate of plaintiff that plaintiff through her evidence proved that neither she nor her mother have executed and signed the Relinquishment Deed dt.14.08.1981 while evidence led by the 44/87 //45// defendant on this point is full of suspicion and doubt. It is stated that the testimony of DW3 and DW4 is entirely different and contradictory story as DW3 deposed that she herself, her husband and one person known to her husband accompanied the Releasers at the time of execution and the Release Deed was got typed on the same day i.e. on 14.08.1981 while DW4 deposed that apart from Releasers, one person may be neighbourer were present, he does not DW3 was also present and further deposed that he got the documents typed one day prior to registration. It is stated that DW4 admitted that he did not ask any question about the identity of executants nor he saw any document to this effect. It is stated that there is no thumb impressions of plaintiff on said Deed. This clearly shows that Relinquishment Deed had been executed by two fictitious ladies brought by Sh.Arvind Sawhney and the said Deed is false and forged one. It is further submitted that plaintiff was confronted by defendant with some specimen signatures of Smt.Vedwati in Hindi attested by gazetted officer but no such gazetted officer who attested the signatures was summoned to prove the said documents. It is stated that defendants no.3 to 5 have miserably failed to proved the construction/addition/alteration in the suit premises carried out 45/87 //46// by Sh.Arvind Sawhney out of his own funds as deposition of DW3 on this point is based on hearsay and without proof. It is further submitted that defendants have completely failed to prove whether they had obtained any permission from L&DO regarding sale and purchase of first floor of the suit property. It is stated that evidence led by plaintiff is reliable as PW2 to PW9 deposed that they were not aware about execution of Relinquishment Deed by plaintiff and her mother in favour of Sh.Arvind Sawhney and they also deposed that plaintiff is one of the co-owner of the suit property. Accordingly, it is stated that issue no.4 be decided in favour of plaintiff and against the defendants.
With respect to issue no.5, it is stated by advocate of plaintiff that onus is upon the defendant to prove the same and the defendants have failed to prove any conduct of plaintiff which estopped the plaintiff from filing the present suit. It is stated that plaintiff has never signed the documents Ex.PW1/ D1 to D4 and the evidence of defendants no.3 to 5 on this point is shaky, unbelievable and uninspiring one. Moreover, the defendants no.3 to 5 failed to show even a single instance by virtue which the conduct of plaintiff is so proved as to dis- entitle her or estop her from filing the present suit. Accordingly, 46/87 //47// it is stated that issue no.5 be decided against the defendants.
With respect to issues no.6,7 and 8, it is stated by advocate of plaintiff that preponderance of evidence clearly show that plaintiff came to know for first time about forgery only on 12.03.2003 and that defendants no.3 to 5 failed to prove even a singly instance by virtue of which it can be inferred that plaintiff and her mother had ever executed the Relinquishment Deed or that there was any single instance which led to believe that plaintiff and her mother were aware about the execution of said Deed or had the reason to believe that they have executed any such Deed in favour of Sh.Arvind Sawhney. It is further stated that in WS defendants stated that plaintiff was residing as licensee while cross DW3 deposed that she residing as guest. If the plaintiff was residing as guest then how a person can live and reside at house from 1983 till date as a guest. However, it is proved that plaintiff had her own ration card, gas cylinder, electricity, water and telephone and other documents which show that plaintiff was living in the suit premises in her own independent right. It is further submitted that during his lifetime Sh.Arvind Sawhney never issued any legal notice to plaintiff nor demanded any alleged licensee fee or rent nor he filed any suit against the plaintiff nor 47/87 //48// he ever made any act which show that there exist not relationship of landlord and tenant or licensee and lessor. However, it has been proved by PW2 to PW9 that suit property was jointly owned and possessed by plaintiff and Sh.Arvind Sawhney in half equal share after the death of their parents. It is submitted that plaintiff has proved that there is no thumb impression on the Relinquishment Deed which is mandatory and that signatures of plaintiff and her mother are forged and fabricated. Accordingly, it is stated that issues no.6, 7 and 8 be decided in favour of plaintiff. It is therefore, prayed by advocate of plaintiff that suit of plaintiff be decreed in favour of plaintiff and against the defendants.
In course of arguments advocate of plaintiff cited AIR 1992 Supreme Court 2100; 73(1998) Delhi Law Times 520; AIR 1996 Supreme Court 2184 and AIR 1973 Supreme Court 1346.
24. Defendants no.1 & 2 failed to argue nor filed any written arguments.
25. On the otherhand advocate of defendants no.3 to 5 states that suit is not properly valued for the purpose of court 48/87 //49// fee and jurisdiction. The plaintiff is the executor of Relinquishment Deed dt.14.08.1981 alongwith her mother and as she has prayed for cancellation of said Deed, she has to value the suit for the purposes of court fees and jurisdiction as per the market value of the property i.e. the subject matter of the said Deed.
It is further stated that plaintiff is estopped from filing the suit by way of her own act, conduct and acquiescence. Plaintiff alongwith her mother went to office of Sub-Registrar and got the said Deed executed and registered in favour of her brother. After execution of Relinquishment Deed the property was mutated by L&DO in the name of Sh.Arvind and since he became the absolute owner of the property, therefore he raised the construction on first and second floors of property from his own funds and loans etc. without any objection from the plaintiff. He also let out property to various tenants and used to receive rent in exclusion of plaintiff as absolute owner in front of plaintiff. Further Sh.Arvind sold the first floor to one Smt.Kunti Rani Dureja in 1988 on the basis of agreement to sell, GPA, Affidavit etc. which were witnessed by plaintiff as one of the attesting witness. Plaintiff never claimed any share in the property 49/87 //50// during the lifetime of her brother. Further the suit is hopelessly time barred in view of above mentioned facts and is an abuse of process of this Court.
It is further stated that PW1/plaintiff in cross examination admitted that she came to Delhi in the year 1983; that she lived with her brother on ground floor uptill 1991; thereafter shifted to 2nd floor and that first and barsati floors were let in 1983; that her brother used to let out first and second of property exclusively and he was exclusively looking after the property; that he used to accept the rent; that she never questioned her brother as to why he himself let out the property and received rent and she never filed any suit, nor issued notice nor demanded any rent till his death. PW1 initially stated that sale of first floor was not in her knowledge and denied her signatures on documents of sale of said floor i.e. Ex.PW1/D1 to Ex.PW1/D4, however in further cross examination plaintiff has admitted that in 1983 the first and second floors were already constructed by her brother and also admitted that first floor was sold to Smt.Kunti. PW1 also stated that she had not signed any document for sanction of building plant but volunteered that she contributed money in construction but she could not give any evidence in this regard. 50/87
//51// PW1 denied the signatures of her mother on document marked X which is having the specimen signatures of her mother duly attested by Gazetted Officer which were required for pension for her mother. PW1 admitted her signatures on Account opening form. It is stated that signatures of plaintiff on bank account opening form and bank specimen signatures cards are same as her signatures on Relinquishment Deed, however plaintiff at the time of filing of suit slightly changed the loop of letter 'S' in order to show that her signatures on the Deed are not of her. PW1 in cross examination stated that she had cordial relationship with her brother and admitted letters Ex.PW1/D3 to Ex.PW1/D5, however in one of the letters she wrote to the L&DO that she and her brother were not having cordial relationship. Hence, it is clear that Sh.Arvind always acted as absolute owner of the suit property; that Sh.Arvind raised construction and he exclusively let the floors of suit property and never shared any rent with plaintiff; that he sold the first floor of property and executed sale documents which were witnessed by plaintiff; that he never paid any money out of sale consideration to plaintiff and that plaintiff never demanded or asserted any right in property in his lifetime. This is because of the fact she had already relinquished her share 51/87 //52// in the suit property alongwith her mother and she was in full knowledge of the fact that after execution of Relinquishment Deed the property was mutated by L & DO in the year 1982 itself and as such her bother being the absolute owner of suit property was dealing with suit property exclusively.
PW2 in his cross examination has stated that he has no knowledge if plaintiff and her mother had executed any Relinquishment Deed. In fact PW2 has no knowledge of anything of the facts of the case and as such this witness can not be relied upon.
It is stated that testimony of PW3 clearly shows that Sh.Arvind Kumar Sawhney had always acted as absolute owner of suit property; that he raised loan for construction of the house; that he used to collect rent from the tenants and deal with property exclusively and that he sold the property also exclusively and repurchased the first floor of property.
It is further stated that PW4 is also not known to defendants and this witness has also repeated the same facts in his affidavit as other witnesses have stated. PW4 stated that plaintiff is staying on second floor since beginning which is not the case of plaintiff, however he has admitted that house was constructed by Sh.Arvind. Hence, the testimony of PW4 is 52/87 //53// also not reliable.
It is further stated that PW5 is totally stranger to defendants no.3 to 5 and there was no occasion as to why Sh.Arvind would tell her that he alongwith the plaintiff were joint owners of property. PW5 admitted that she has come to depose at the request of plaintiff.
It is further stated that from the testimony of PW6 it is clear that he has deposed in the case as he is the husband of the friend of plaintiff and he does not know anything about the case and as such the statement of this witness can not be relied upon.
It is stated that from the testimony of PW7 it is clear that PW7 is not aware of facts of the case and whatever the plaintiff had stated to him he has deposed in his affidavit and he gave his statement as witness on the asking of plaintiff.
It is further stated that from the testimony of PW8 it is clear that PW8 recognised the signature of Smt.Vedwati on Relinquishment Deed; that plaintiff and Smt.Vedwati might have executed the documents before the Sub-Registrar; that whatever written in affidavit by the counsel she signed the same and she did not know even meaning of words used in the affidavit.
53/87
//54// It is further stated that from the testimony of PW9 it is clear that he is also not aware about the facts of the case and whatever he was told by the plaintiff, he had deposed. Hence, the testimony of PW9 also not trustworthy.
Accordingly, it is stated that all PW' s have repeated and said almost the same facts that Sh.Arvind used to discuss with them his family matters and when details were asked they have denied the same. It is submitted that no sane person would discuss about his family matters with others or person in distant relatives.
It is stated that DW1, the handwriting expert has proved his report Ex.DW3W1/A and in cross examination the counsel for plaintiff could not extract anything which could demolish the case of defendants and relevant to the case of plaintiff.
DW2 proved the registration of Relinquishment Deed before the Sub-Registrar, Delhi and original Release Deed is Ex.DW3W2/A and he also tallied the Relinquishment Deed from the record brought by him.
DW3/defendant no.3 identified the signatures of her mother-in-law and of plaintiff on Relinquishment Deed. DW3 stated that on the basis of said Deed L&DO mutated the suit 54/87 //55// property on 08.09.1982 vide letter Ex.D3W1/1. DW3 further stated that Sh.Arvind in 1988 sold the first floor to Smt.Kunti Rani and the document of sale were even witnessed by plaintiff in her presence and besides this the plaintiff also sworn an affidavit before SDM in the regard and these documents are Ex.PW1/D1 to Ex.PW1/D4. DW3 further stated that plaintiff never claimed any share in the suit property or any share in rent received by her husband. Moreover, not opposed the sale of first floor as she had relinquished all her rights in suit property in favour of her brother. In cross examination of DW3 nothing material could be extracted.
From the testimony of DW4 clearly shows that he has drafted the Relinquishment Deed and he is also one of attesting witness of same and that Releasers have signed the said deed in his presence. DW4 stated that as per rules non graduate executants also have to put thumb impression on the document but in case of graduate executant, putting of thumb impression was not mandatory. In his cross examination the plaintiff has failed to extract material form his case.
DW5 proves that GPA and Will dt.18.11.1988 Ex.PW1/D2 and Ex.PW1/D3 executed by Sh.Arvind and were witnessed by the plaintiff. In cross examination of this witness 55/87 //56// also nothing material has come out.
Accordingly, it is stated that defendants have proved on record that the Relinquishment Deed dt.14.08.1981 was duly executed by Sh.Arvind which was duly registered before Sub-Registrar. It is further proved by defendants that plaintiff had also witnessed the agreement to sell. GPA, Will dt.18.11.1988 and sworn affidavit on 16.11.1988 before SDM. Hence, plaintiff is not entitled for the relief claimed in the suit and as such suit filed by plaintiff be dismissed with cost.
During the course of arguments advocate of defendant cited AIR 1980 Supreme Court 531; AIR 1991 Punjab & Haryana 254; AIR 1987 Orissa 7 and AIR 1967 Supreme Court 1326.
26. My findings with respect to the issues are as follows:
REGARDING ISSUE NO.2 "Whether suit has not been valued properly for the purpose of Court fee?OPD"
This issue was OPD and framed on a specific objection that suit has not been properly valued.
Plaintiff had valued the suit as follows for the 56/87 //57// purpose of court fees and jurisdiction:-
Value Jurisdiction C.Fee i. For a decree u/s.31 of the Specific Relief Act Rs.15,00,000/- Rs.10/- ii. For a decree of Mandatory Injunction Rs. 260/- Rs.26/- iii. For a decree of Permanent Injunction Rs. 260/- Rs.26/-
Accordingly, plaintiff affixed the court fees of Rs.10/- + Rs.26/-+ Rs.26/-.
On the otherhand defendant had stated that the court fees should be as per the total value of the relinquishment deed sought to be cancelled by the plaintiff i.e. half of the market value of the relinquishment deed shall be the jurisdiction and on that value plaintiff has to pay the court fees.
I have seen the file and feel that defendants have proved the issue on the following grounds:-
firstly, so far as affixation of court fees of Rs.26/- for decree of mandatory injunction and Rs.26/- for decree of permanent injunction is concerned, there is no infirmity in that.
Secondly, plaintiff has sought cancellation of the relinquishment deed and accordingly, seek a decree u/s.31 of 57/87 //58// Specific Relief Act. While the value for the purpose of jurisdiction has been fixed at Rs.15 lacs, the court fees is affixed at Rs.10/-. It is stated by the advocate of plaintiff that since Rs.10/- affixed as stamp, that should be the value for the purpose of court fees.
In my view, stamp fees on a document does not determine the value of the document for the purpose of the court fees. Suppose receipt is filed. The receipt is usually affixed the revenue stamp of Rs.2/-. If the receipt is of the value of Rs.10 lacs then court fees has to be paid on Rs.10 lacs not on Rs.2 which is stamp or stamp fees. Hence, the stamp fees of Rs.10/- could not be calculated for the purpose of determining the payment of court fees.
Thirdly, plaintiff by seeking cancellation of the relinquishment deed seeks that she should be declared owner of the half of the suit property i.e. 55/8, Old Rajinder Nagar, New Delhi. Under the court fees and suit valuation, plaintiff should have calculate the total value of this house and then valued half and accordingly should have paid the court fees. It is the golden rule for determination of court fees and jurisdiction which is not been done by the plaintiff. 58/87
//59// In view of above, the issue no.2 is decided against the plaintiff and in favour of defendants. It is held that suit has not been properly valued for the purposes of court fees.
REGARDING ISSUE NO.3 "Whether Mrs.Samriti Bhasin had executed the affidavit dt.16.11.1988 and also witnessed agreement to sell dt.18.11.88, General Power of Attorney dt.18.11.88 and also witnessed Will of Late Sh.A.K. Sawhney dt.18.11.88?"
I have seen the record and feel that issue no.3 be decided against the plaintiff and in favour of the defendants on the following grounds:-
firstly, on record there are affidavit dt.16.11.1988 alleged to be executed by the plaintiff and agreement to sell, GPA and Will all dt.18.11.1988.
It is alleged by the defendants that plaintiff has executed affidavit. It is further alleged by the defendants that plaintiff is a witness to the agreement to sell, GPA and Will all dt.18.11.1988.
Plaintiff had denied altogether her signatures on 59/87 //60// these documents.
These documents shows that first floor of the suit property was sold by Sh.Arvind Kumar Sawhney in favour of Smt.Kanti Rani Dureja. These documents have been filed by the defendants to show that the plaintiff knew and accepted Sh.Arvind Kumar Sawhney to be owner of the suit property. While allegation of plaintiff is that she never signed these documents, even has no knowledge of these documents and signatures on her behalf are forged and fabricated.
Secondly, the admitted signatures of plaintiff are on Application for opening saving bank account with Syndicate Bank, Old Rajinder Nagar branch and on specimen signature on the Bank card. Both Account opening form and specimen signature Bank card are dt.18.01.1990.
DW1 in his report Ex.D3W1/A had opined that admitted signatures, the photographs of which bear the marking as A1 to A15 were written by the same person i.e. Smt.Samrit Bhasin who wrote the questioned signatures, the photographs of which bear the marking as Q1, Q3, Q6, Q8 and Q10 to Q16.
Q10 and Q11 are signatures on affidavit
60/87
//61//
dt.16.11.1988. Q12 is signature on agreement to sell. Q13 is signature on GPA. Q14 is signature on Will and Q15 is signature on the backside of the Will. It is opined by DW1 that these signatures are of same person i.e. Smt.Samriti Bhasin/plaintiff who also wrote the admitted signatures the photographs of which bears marking as A1 to A15.
The report and evidence of DW1 could not be shaken by the plaintiff in the cross examination. Hence the report of DW1 Ex.D3W1/A has been proved and the evidence of DW1 could not be shaken in the cross.
Thirdly, I have myself seen the signatures of plaintiff Smt.Samrit Bhasin at point A on affidavit dt.16.11.1988, agreement to sell dt.18.11.1988, GPA dt.18.11.1988, Will dt.18.11.1988 and backside of the Will and compared with the signature of plaintiff on Account opening form in the bank, specimen signature of plaintiff on Bank card as well as in the present plaint filed and feel that signatures on Ex.PW1/D1 to Ex.PW1/D4 are of plaintiff i.e. Smt.Samirit Bhasin.
Fourthly, Ex.PW1/D1 is agreement to sell and is 61/87 //62// duly notarized. A notarized document raises presumption unless rebutted.
I have seen file. Plaintiff has failed to rebut the presumption raised in favour of Ex.PW1/D1 which is a duly notarized agreement to sell.
Fifthly, Ex.PW1/D2 which is GPA and Ex.PW1/ DW3 which is Will are registered documents. The registered documents also raises presumption unless it is shown otherwise.
I have seen the evidence and document on record and feel that plaintiff has failed to rebut the presumption raised in favour of registered documents Ex.PW1/D2 and Ex.PW1/D3.
Sixthly, I have seen the signatures of the plaintiff in the plaint and subsequently in the evidence during the cross examination and affidavit, the plaintiff has become conscious while putting her signatures at the time of cross examination. Careful perusal of signature on the plaint and subsequently in evidence shows that signatures in both are different i.e. plaintiff while signing differently forgotten what she 62/87 //63// signed in the plaint.
Seventhly, it has came during the evidence that Smt. Kanti Rani Dureja had told the plaintiff about purchasing of the first floor. Plaintiff has not given the date intentionally as to when this fact was communicated to her. However this fact could have been communicated immediately after purchase.
These documents are of the year 1988. Why plaintiff did not challenge these documents at that time, has not been explained. During cross examination PW1 had admitted that she has raised no objection in the sale of first floor by her brother Sh.Arvind Kumar Sawhney. If she had no objection, why now the present suit has been filed when at the time of sale of first floor she had no objection?
It is well established a property cannot be sold unless one is owner. If the plaintiff had no objection to the sale of first floor i.e. she knew the position around year 1988 that Sh.Arvind Kumar Sawhney was the owner of the suit property.
In view of above, it is proved that plaintiff Smt.Samriti Bhasin had executed affidavit dt.16.11.1988 and also witnessed agreement to sell, GPA, Will of Sh.Arvind Kumar Sawhney all dt.18.11.1988. The issue 63/87 //64// no.3 is decided against the plaintiff and in favour of defendants.
REGARDING ISSUE NO.4 "Whether plaintiff and Mrs.Vedwati had executed Relinquishment Deed in favour of Sh.Arvind Sawhney on 14.08.1981?OPD"
This issue was OPD and framed on a allegation in the WS.
I have seen the evidence, documents and file and feel that defendants have proved the issue no.4 on the following grounds:-
firstly, plaintiff has filed the present suit for declaration that relinquishment deed dt.14.08.1981 was never executed by Smt.Vedwati nor by plaintiff in favour of Sh.Arvind Kumar Sawhney while defendants no.3 to 5 had maintained that plaintiff and Smt.Vedwati had executed relinquishment deed in favour of Sh.Arvind Kumar Sawhney on 14.08.1981.
I have seen the relinquishment deed dt.14.08.1981. The relinquishment deed is a registered document running into three pages. Each page is signed by Smt.Samriti Bhasin and Smt.Vedwati. On the backside of the first page, signature of 64/87 //65// Smt.Vedwati appears twice and signature of plaintiff appears once. Smt.Vedwati had also thumb impressed the said deed. The relinquishment deed is witnessed by two persons. Since the document/relinquishment deed is registered document, there is presumption in favour of this document.
Secondly, plaintiff had stated that infact she was not in Delhi on 14.08.1981 and hence this document cannot be executed by the plaintiff. It is further stated by plaintiff that document was also not executed by Smt.Vedwati.
Plaintiff has not proved that she was not in Delhi on 14.08.1981. The best evidence to prove that the plaintiff was not in Delhi was her husband. Plaintiff has not stated in the pleadings or in the evidence where she was exactly placed on 14.08.1981.
So far as plaintiff is concerned, plaintiff states that she was not in Delhi. If she was not in Delhi how she can say that Smt.Vedwati, her mother, did not visit the office of Sub- Registrar and signed the same. One can be sure about himself. How plaintiff can be sure about others while not being present at that place?
To prove that plaintiff was not in Delhi on that date, 65/87 //66// she could have filed the affidavit of her husband which was not done nor plaintiff stated that she was at what place and with whom.
While denying the signatures and denying the signatures of her mother Smt.Vedwati plaintiff has not filed any admitted signature of Smt.Vedwati so that on comparison of both signatures, one can draw conclusion whether signature of Smt.Vedwati are genuine or not. This goes against the plaintiff. More so plaintiff has not engaged any expert or sought any expert opinion to say that the signature on relinquishment deed dt. 14.08.1981 are not of Smt.Vedwati and somebody else.
Thirdly, the evidence of DW1 is clear. DW1 proved report Ex.D3W1/A in which DW1 made an opinion that photographs of questioned document which bears marking as Q1, Q3, Q6, Q8, Q10 to Q16 were written by the person Smt.Samriti Bhasin who also wrote admitted signature the photograph which bears marking A1 to A15. The report of the expert DW1 as well as his evidence could be shaken in the cross.
66/87
//67// Fourthly, I have myself compared the signature on the relinquishment deed, signature appears of the bank opening form and the specimen signature bank card and feel that the signature of Smt.Samirit Bhasin on the relinquishment deed and signature on the bank account opening form etc. are of same person i.e. Smt.Samriti Bhasin/plaintiff who signed the relinquishment deed dt.14.08.1981.
Fifthly, it is stated by advocate of defendants no.3 to 5 that at the time of filing of the present case to show that signatures on the Deed are not of her, plaintiff has slightly changed the loop of alphabet 'S' in the beginning of word 'Samriti', so as her signatures previously done look different.
Perusal of record shows that after changing the loop of alphabet ' S', plaintiff even started signing differently as is evident from her signature in the evidence recorded in this Court.
Sixthly, DW4 is Sh.H.V. Chauhan, Advocate. DW4 deposed that he had drafted the Relinquishment Deed Ex.DW3W2/A on the instructions of the Releasers. He further deposed that he got the document typed and the Releasers i.e. 67/87 //68// Smt.Samriti Bhasin/plaintiff and Smt.Vedwati on that date besides the attesting witnesses were present.
The points/facts that relinquishment deed was prepared at the instructions of Releasers and the Releasers were present at the time of registration and they singed the relinquishment deed, could not be shaken in the cross examination by the plaintiff.
Hence, it is proved on record that relinquishment deed dt.14.08.1981 was signed by plaintiff and Smt.Vedwati at the office of Sub-Registrar and duly signed by them at the time of registration.
Seventhly, the evidence of DW3 Smt.Meera Sawhney who is defendant no.3 is also very clear. DW3 deposed that on 14.08.1981 she accompanied the plaintiff, Smt.Vedwati and her husband Sh.Arvind Kumar Sawhney to the office of Sub-Registrar alongwith one of the family friend and in her presence the relinquishment deed prepared and signed by Smt.Vedwati and Smt.Samriti Bhasin/plaintiff and on the backside of page no.1 at the time of registration both plaintiff and Smt.Vedwati signed. All these points/facts could not be shaken in the cross.
68/87
//69// Eighthly, during the evidence specimen signatures of Smt.Vedwati wife of Sh.Mulkh Raj Sawhney resident of 55/8, Old Rajinder Nagar, Delhi were produced. These are three signatures of Smt.Vedwati which is duly attested by Gazetted Officer and are on paper Ex.D3W1/4. Plaintiff even denied this signatures and this goes against the plaintiff.
Ninthly, it has proved as a fact on record that Smt.Vedwati used to sign in Hindi. It is admitted even by the plaintiff witness PW8 who was when confronted with same has admitted these signatures of Smt.Vedwati as well as on Ex.DW3W2/A and then immediately denied the same. This further goes against the plaintiff.
Tenthly, plaintiff had maintained in the plaint that her mother Smt.Vedwati was not having good health at the time of her death. This fact has been contradicted by the witness on her behalf i.e. PW8 who claims to be the sister of Smt.Vedwati. PW8 deposed in the cross examination that Smt.Vedwati was of sound health and sound mental condition. PW8 further deposed that Smt.Vedwati used to sign in Hindi. 69/87
//70// PW8 corroborated the facts given by defendant no.3/DW3 in her evidence and in the WS.
In view of above, I feel that defendants have discharged the onus. The issue no.4 is decided in favour of the defendants and against the plaintiff and it is held that plaintiff and Smt.Vedwati had executed relinquishment deed in favour of Sh.Arvind Sawhney on 14.08.1981.
REGARDING ISSUE NO.1 "Whether suit of the plaintiff is barred by limitation?OPD 1,2,3,4 & 5"
Plaintiff had stated that present suit is within the period of limitation as she came to know about the relinquishment deed only in the year 2003 when she made correspondence with the L&DO opposed the mutation in favour of defendant no.3 and then it was came to know that there is relinquishment deed dt.14.08.1981 alleged to be executed by plaintiff and Smt.Vedwati.
The defendants no.3 to 5 maintained all along that suit is barred by limitation and the Relinquishment deed was signed by the plaintiff.
This issue was OPD. Defendants no.1 and 2 had 70/87 //71// not led any evidence.
I have seen the file and feel that defendants no.3 to 5 have proved that the suit of the plaintiff is barred by limitation on the following grounds:-
firstly, vide issue no.4 it has already been held that plaintiff and Mrs.Vedwati had executed the relinquishment deed in favour of the Sh.Arvind Sawhney on 14.08.1981.
Secondly, vide issue no.3 it has already been held that plaintiff had executed the affidavit dt.16.11.1988 and also witnessed the agreement to sell, GPA and Will of Late Sh.A.K. Sawhney all dt.18.11.1988.
Thirdly, it is a proved fact and admitted by the plaintiff as PW1 that plaintiff did not raised any objection at the time of sale of first floor to Smt.Kunti Rani Dureja. PW1 has further admitted in cross examination that Smt.Kunti Rani Dureja had told her that Smt.Kunit Rani Dureja had purchased the first floor of the suit property from Sh.Arvind Kumar Sawhney.
Fourthly, Section 115 of the Indian Evidence Act 71/87 //72// provides as under:-
"Estoppel- When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
Illustration A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to proved his want of title."
When Sh.Arvind Kumar Sawhney sold the first floor of the suit property to Smt.Kunti Rani Dureja being owner and admittedly plaintiff knew this fact around the year 1988 then why plaintiff kept quite till filing of suit, has not been explained.
One who kept silent about his rights and raised his rights after long passage of time, when it is the duty to speak u/s.115 of the Indian Evidence Act which mandate that he should speak, when position is reversed without speaking then the position cannot be taken back.
Fifthly, plaintiff states that after the death of her 72/87 //73// brother Sh.Arvind Kumar Sawhney, she become joint owner in equal share of the suit property and when the construction was raised above ground floor she equally contributed to the construction. If the construction of first, second and barsati floors were raised with the consent of plaintiff, she must have know the agreement mark-X between Sh.Arvind Kumar Sawhney and Sh. Ram Lal, the Contractor. This agreement clearly shows and states that Sh.Arvind Kumar Sawhney is the exclusive owner of the suit property. This document is dt.14.06.1983 and imputes knowledge on the plaintiff on 14.06.1983.
Interestingly this document Mark-A is witnessed by one Sh.Rakesh Kumar, s/o. Sh.Om Prakash Sawhney, resident of 55/9, Old Rajinder Nagar, New Delhi i.e. adjacent house. Sh.Rakesh Kumar is the brother of Sh.Raman Kumar Sawhney who deposed as PW3 on behalf of plaintiff. The agreement mark-X shows Sh.Arvind Kumar Sawhney as owner of the suit property. PW3 states that Sh.Arvind Kumar Sawhney was the part owner. How it is possible when brother is saying Sh.Arvind Kumar Sawhney being the owner and another brother saying that Sh.Arvind Kumar Sawhney was only part owner?. One member of the family says something 73/87 //74// and another family member says another thing. This goes against the creditability of PW3 as well as plaintiff.
Sixthly, the first floor was repurchased by Sh.Arvind Kumar Sawhney through Will Ex.PW1/D3, agreement to sell Ex.PW1/D5, possession letter Ex.PW1/D4 and receipt Ex.PW1/D1. All these documents are witnessed by one Sh.Om Prakash Sawhney, resident of 55/9, Old Rajinder Nagar, Delhi. Sh.Om Prakash Sawheny is the father of Sh.Rakesh Kumar who is witness to agreement mark-X and PW3 Sh.Raman Kumar Sawhney.
PW3 had admitted in his cross examination the signatures of his father Sh.Om Prakash Sawhney. He further admit the signature of Sh.Om Prakash Sawhney on Ex.PW1/D2. Ex.PW1/D2 is a letter written by Sh.Om Prakash Sawhney. This document is admitted to be signed by Sh.Om Prakash Sawhney by PW3. This letter has following contents:-
"I have no objection if common wall between House no.55/8, Old Rajendra Nagar, New Delhi-110 060, and 55/9 Old Rajendra Nagar, New Delhi-110 060, is used for construction purpose by Sh.A.K.Sawhney, the owner of house no. 55/8, Old Rajendra Nagar, New Delhi."
This document clearly shows that Sh.Arvind Kumar 74/87 //75// Sawhney to be owner of the suit property. Sh.Rakesh Kumar Sawhney is the brother of PW3 while PW3 states that Sh.Arvind Kumar Sawhney was only part owner. It is very strange that son has more knowledge than his father i.e. Sh. Om Prakash Sawhney! Seventhly, the cross examination of PW1 clearly shows that PW1 knew about mutation of the suit property in favour of Sh.Arvind Kumar Sawhney. The cross examination of PW1 shows that she knew about sale of first floor by Sh.Arvind Kumar Sawhney and then its repurchased. Plaintiff further deposed that sale was done with her consent. Plaintiff further states that some portions of suit property were let out by Sh.Arvind Kumar Sawhney with her consent. If all these were done with the consent of the plaintiff, how in the year 2003 plaintiff can say that she had no knowledge of the relinquishment deed and other documents signed by her? Hence, it is proved on record that plaintiff knew and signed the relinquishment deed dt.14.08.1981.
Eighthly, the limitation period for filing a suit for declaration was 3 years from 14.08.1981 and since the suit 75/87 //76// has been filed in the year 2003, the suit is hopelessly barred by limitation.
Ninthly, PW3 is bother of Sh.Rakesh Kumar who is a witness to agreement mark-X. This agreement is an agreement between Sh.Arvind Kumar Sawhney and Sh.Ram Lal, the Contractor. In this agreement it is stated that Sh.Arvind Kumar Sawhney is the owner of the suit property.
While in evidence PW3 states that plaintiff is the joint owner with Sh.Arvind Kumar Sawhney, however Sh.Om Prakash Sawhney who is father of PW3 and signed certificate which is Ex.PW1/D2 states that Sh.Arvind Kumar Sawhney is the owner of the suit property.
Sh.Om Prakash Sawhney is the father of PW3. How it is possible that father and brother knows that Sh.Arvind Kumar Sawhney is the owner of the suit property while one of the brother i.e. PW3 does not know this fact. This shows that PW3 gave false evidence in the cross examination.
Tenthly, PW4 had deposed in the cross examination that he knew about mutation in the favour of Sh.Arvind Kumar Sawhney. While witness in support of 76/87 //77// plaintiff knows about mutation of the suit property in favour of Sh.Arvind Kumar Sawhney but plaintiff does not. This raises doubt about facts, version and averments stated in the plaint as well as in the evidence given by the plaintiff.
In view of above, the issue no.1 is decided against the plaintiff and in favour of defendants no.3 to 5. It is held that suit of the plaintiff is barred by limitation. REGARDING ISSUE NO.5 "Whether plaintiff is estopped by her conduct from filing of the instant suit?OPD"
This issue was OPD.
I have seen the pleadings, evidence and documents on record and feel that defendants have proved the issue on the following ground:-
firstly, vide issue no.4 it has already been held that plaintiff and Mrs.Vedwati had executed the relinquishment deed in favour of the Sh.Arvind Sawhney on 14.08.1981. Once the relinquishment deed has been signed by the plaintiff she cannot challenge the same.
77/87
//78// Secondly, vide issue no.3 it has already been held that plaintiff had executed the affidavit dt.16.11.1988 and also witnessed the agreement to sell, GPA and Will of Late Sh.A.K. Sawhney all dt.18.11.1988. Since it has proved that Smt.Samriti Bhasin/plaintiff has signed on these documents in the year 1988 now she is estopped to deny her signature.
Thirdly, it has proved as a fact that Smt.Kunti Rani Dureja had informed the plaintiff about purchase of first floor. A seller can sale the property only when he is owner. If a person is not owner and allows another person to sale the same showing him to be owner then he is estopped u/s.115 of the Indian Evidence Act to challenge.
Fourthly, it is proved as a fact in evidence of PW1/plaintiff that plaintiff came in Delhi in the year 1984 though sometime plaintiff states that she came in Delhi in 1983 to live in the suit property. It is further a proved fact that plaintiff stayed in the ground floor with his brother till 1991 and then shifted to the second floor. It is further a proved fact that first, second and barsati floors were constructed in the year 78/87 //79// 1983. The first floor was let out of the Bank of India from 1983 to 1986. The barsati floor was let out to Syndicate Bank 1983. It is further an admitted fact that no prior permission from the plaintiff was taken at the time of letting of the premises i.e. first, second and barsati floors despite plaintiff being present in the same house in the ground floor. Why plaintiff has not demanded the rent if she claims to be owner?
Fifthly, it is proved by defendant no.3 that construction was raised out of funds of Sh.Arvind Kumar Sawhney as some amount was taken as loan form the office by the Sh.Arvind Kumar Sawhney. Plaintiff has not filed any document to show that she contributed towards construction. It has already been proved that letting by Sh.Arvind Kumar Sawhney was without the consent of the plaintiff. Even the rent was received exclusively by Sh.Arvind Kumar Sawhney without sharing with plaintiff and plaintiff never demanded the rent from Sh.Arvind Kumar Sawhney. It is further a proved and admitted fact that house tax and other taxes were paid exclusively by the Sh.Arvind Kumar Sawhney. If plaintiff is owner to the extent of half share then why plaintiff did not care about payment of taxes and other expenses? 79/87
//80// Sixthly, plaintiff has all along maintained that the relation of the plaintiff with his brother Sh.Arvind Kumar Sawhney was cordial but the evidence on behalf of plaintiff shows that relation were not cordial. Even there is letter on record which shows that relation between plaintiff and Sh.Arvind Kumar Sawhney was not cordial.
Seventhly, plaintiff stated as a fact that construction of first, second and barsati floors was raised with her consent and she contributed towards construction cost but plaintiff does not mention anywhere about construction agreement mark-X. If the construction was raised with the consent of the plaintiff then she must have knew agreement mark-X? This is the agreement between Sh.Arvind Kumar Sawhney and Sh.Ram Lal, the Contractor duly witnessed by Sh.Rakesh Kumar who is son of Sh.Om Prakash Sawhney i.e. neighbourer. This agreement clearly stipulate that Sh.Arvind Kumar Sawhney was owner of the suit property.
In view of above, the defendants have proved the issue and the issue is decided in favour of the defendants and against the plaintiff. It is held that plaintiff 80/87 //81// is estopped by her conduct from filing the present suit. REGARDING ISSUES NO.6, 7 & 8
"Whether plaintiff is entitled to decree of declaration as prayed for?OPP"
& "Whether plaintiff is entitled to decree of Mandatory Injunction as prayed for in prayer clause no.2 & 3?"
& "Whether plaintiff is entitled to decree of permanent injunction as prayed for in para no.4 & 5 of the prayer clause?"
I have seen the pleadings, evidence and documents on record and feel that plaintiff has failed to prove the issues no.6 to 8 on the following grounds:-
firstly, It has already been held vide issue no.1 that suit of the plaintiff is barred by limitation. It has further been held vide issue no.2 that suit has not been properly valued for the purposes of court fee. It has further been held vide issue no.3 that plaintiff had executed the affidavit dt.16.11.1988 and also witnessed the agreement to sell, GPA and Will all dt.18.11.1988. It has already been held vide issue no.4 that plaintiff and Mrs.Vedwati had executed the relinquishment deed in favour of Sh.Arvind Kumar Sawhney on 81/87 //82// 14.08.1981. It has further proved vide issue no.5 that plaintiff is estopped by her conduct from filing the present suit.
Secondly, the reasons given in different issues shows that plaintiff has failed to prove averments/facts as given in the plaint. Since the plaintiff failed to prove the averments and facts as given in the plaint, she failed to prove the case in her favour.
Thirdly, in issue no.5, this Court has given details of how plaintiff has given false information and given wrong facts. Not only plaintiff but the witnesses produced on behalf of plaintiff also gave false information.
Fourthly, the evidence of PW1/plaintiff shows that she failed to prove the averments in the plaint and completely shaken in the cross examination. Many facts appears to be contradictory. PW1 deposed that she was living in the ground floor since 1983. Later on PW1 admitted that she was residing in the suit property since 1984. Initially PW1 shown her ignorance about sale of first floor, however in later cross examination PW1 accepted that Smt.Kunti Rani Dureja had 82/87 //83// told her about the purchase of first floor from her brother Sh.Arvind Kumar Sawhney but she did not disclosed when. Hence, concealed material facts. PW1 also failed to prove that signature on the relinquishment deed are not of Smt.Vedwati. PW1 failed to produce any admitted signature of Smt.Vedwati for comparison. PW1 further failed to prove through Expert opinion that signature on the relinquishment deed was not of Smt.Vedwati but by a fictitious person as alleged by her in plaint as well as in evidence. The evidence of DW3 Smt.Meera Sawhney and DW4 Sh.H.V. Chauhan shows that evidence of PW1 and averments in the plaint were inconsistent and wrong.
PW2; Sh.Ascharj Lal Sawhney, who claimed to be real Uncle (Chacha) of the plaintiff, does not know when the plaintiff got married. PW2 further does not know how long plaintiff stayed in the ground floor. PW2 also does not know about the sale of first floor which is a fact. PW2 does not know when second floor was built. This shows that evidence of PW2 is not credit worthy.
PW3 is Sh.Raman Kumar Sawhney claims to be Cousin of plaintiff i.e. son of real Massi of plaintiff. The evidence of PW3 shows that he has given false facts and false 83/87 //84// evidence. PW3 deposed in his cross examination that second floor remained with the plaintiff since 1983 which is a wrong fact. PW3 denied that plaintiff started staying on the second floor only after 1990. Hence, PW3 denied a fact which is admitted by PW1. PW3 further deposed that at the time of construction of second floor, plaintiff paid the money by cheque which is not a fact.
PW4 is Sh.Rajiv Wadhwa who claims to be neighbourer of plaintiff. PW4 gave wrong facts in the evidence when he states that plaintiff staying in the house since 1981/1982. A neighbourer does not know where plaintiff lived and since when!. Hence, evidence of PW4 is also not credit worthy.
PW5; Ms.Santosh Malik claims to be family friend of parties. However, again PW5 gave wrong facts in the cross examination by stating in her cross examination that plaintiff started residing in second floor since 1983 which is a wrong fact. PW5 further deposed that before that plaintiff was living in Bihar. PW5 further deposed that she knew about sale of first floor by Sh.Arvind Kumar Sawhney. This goes against the plaintiff.
PW6; Sh. Vinod Kumar who is husband of friend of 84/87 //85// plaintiff. PW6 claims to be knew all the facts, however he does not know who is the father of plaintiff. PW6 also gave the wrong fact when he states that plaintiff is staying on the second floor for the last about 20 years.
PW7; Sh.Chander Prakash Anand claims to be Maternal Uncle (Mama) of plaintiff, however PW7 does not know where plaintiff went after marriage. PW7 also deposed that plaintiff and Sh.Arvind told him about repurchase of first floor.
PW8; Smt.Raj Dulari Sawhney is the sister of Smt.Vedwati i.e. Aunt of plaintiff. PW8 knew about repurchase of first floor. PW8 deposed that she know about letting and sale of first floor with permission of plaintiff. This evidence shows that plaintiff was having the knowledge about relinquishment deed and mutation of the suit property in favour of Sh.Arvind Kumar Sawhney. PW8 also deposed that Smt.Vedwati was mentally and physically sound at the time of her death. This fact contradictory to the evidence of PW1 when PW1 deposed that Smt.Vedwati was not mentally sound before her death.
PW9; Sh. Gagan Chandiok who claims to be Cousin of plaintiff, does not inspired the confidence. 85/87
//86// While plaintiff explained that relinquishment deed was not signed by Smt.Vedwati, PW8 given indication that relinquishment deed dt.14.08.1981 appears to have been signed by Smt.Vedwati. This is the contradiction on the face of it.
Hence, it has came on record that plaintiff has given wrong facts in the plaint and concealed material facts. It is well established that person who gives wrong information and conceals material facts is not entitled for the extra ordinary relief of injunctions.
Fifthly, it has proved on record by DW3/Smt. Meera Sawhney that for the purpose of construction loan was raised by her husband Late Sh.Arvind Kumar Sawhney. It is a fact that plaintiff never claimed any share in the suit property during the lifetime of her brother Sh.Arvind Kumar Sawhney despite having strained relations. This shows that plaintiff has knowledge about relinquishment deed and various document by which first floor was sold to Smt.Kunti Rani Dureja.
The above mentioned reasons, dis-entitles the plaintiff from the discretionary and equitable relief of injunction. Accordingly, plaintiff is not entitled to the relief of 86/87 //87// declaration as prayed for, for a decree of mandatory injunction as prayed for in prayer clause no.2 & 3 and for a decree of permanent injunction as prayed in para no.4 & 5 in the prayer clause. The issues no.6 to 8 are decided against the plaintiff and in favour of defendants.
27. On the basis of findings on all issues, the suit of the plaintiff against the defendants dismissed with no order as to cost.
28. Decree Sheet be prepared accordingly. File be consigned to Record Room.
Announced in open Court DAYA PRAKASH today on dated 26.03.2008 ADDITIONAL DISTRICT JUDGE DELHI 87/87