Sh. Amit Kumar S/O Late Sh. Braham ... vs Sh. Mahender Singh S/O Sh. Chandgi Ram on 9 May, 2014

[Cites 18, Cited by 0]

Delhi District Court

Sh. Amit Kumar S/O Late Sh. Braham ... vs Sh. Mahender Singh S/O Sh. Chandgi Ram on 9 May, 2014

    IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT 
             JUDGE17: TIS HAZARI COURTS : DELHI
Suit No. 148/14 (Old Suit no. 16/03) &
Suit no. 149/14 (Old Suit no. 80/03)
Unique Case ID of suit no. 148/14  :    02401C5100382004
Unique Case ID of suit no. 149/14  :    02401C0137932003

Sh. Braham Prakash (since deceased) Through LRs.:


1.     Sh. Amit Kumar S/o late Sh. Braham Prakash,


2.     Master Vinit (Minor) S/o late Sh. Braham Prakash, 
       Through his mother and next friend Smt. Chand Rani. 


Both R/o Village Kirari Suleman Nagar,
P.O. Nangloi, Delhi - 41.                                      .... Plaintiff
                             VERSUS


1.    Sh. Mahender Singh S/o Sh. Chandgi Ram


2.     Sh. Kuldeep Singh S/o Sh. Mahender Singh


3.     Sh. Satish Kumar S/o Sh. Mahender Singh


       All Residents of 
       1/16, Roop Nagar, Delhi - 7                                     ..... Defendants

Date of institution of the suit                :       20.02.2003
Date on which order was reserved               :       21.04.2014
Date of decision                               :       09.05.2014



Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03)     Page No. 1/54
             SUIT FOR CANCELLATION OF DEEDS AND FOR 
                     PERMANENT INJUNCTION

JUDGMENT

Vide this common judgment, I shall dispose off both the abovesaid suits in between the same parties. Vide orders dated 29.07.2004, the Ld. Predecessor of this Court had clubbed both the suits together. However, the evidence has been led in both the suits by both the parties.

2. The suit bearing no. 148/14 is a suit for Cancellation of Deeds and for Permanent Injunction. The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff is the real brother of the defendant no. 1, whereas the defendants no. 2 and 3 are the sons of the defendant no. 1 and the nephews of the plaintiff. It has been further stated that late Sh. Chandgi Ram, father of the plaintiff and the defendant no. 1 had inherited 3/4 th share out of the ancestral land comprised in Khasra nos. 338(60), 339(52), 340(410), 342(314), 344(02), 345(46), 492(33), 494(78), 495(412), 516(32), 676(319), 677(52), 680(27), 681(119), 710(59), 711(41), 844(119), 843(02), 846(17), 894(12), 1008(312), 1009(1010), 1015(93), 1162(51), 1297(113), 1381(79), 1382(313), 1383(60) and 790(22) in all measuring 118 bighas and 9 biswas. It has been further stated that the remaining 1/4th share stood in the name of Sh. Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 2/54 Shyam Sunder, natural brother of the plaintiff and the defendant no. 1, who was adopted by Sh. Kishan Chand, paternal uncle of the plaintiff. It has been further stated that besides the said land, 3/4th share of the ancestral land measuring 42 bighas and 14 biswas comprised in Khasra no. 15/1 (51), 2(416), 3(416), 4/1(15), 8/2(28), 9(416), 10(49), 11(318), 12/1(45), 19/2(314) and 20(36) situated within the Revenue Estate of Village Kirari, Suleman Nagar, Delhi was also owned by the late Sh. Chandgi Ram, which was purchased by him through a registered sale deed. It has been further stated that late Sh. Chandgi Ram expired on 18.08.1998. It has been further stated that at the time of his death, late Sh. Chandgi Ram was holding 3/4th share in the land comprised in Khasra nos. 710(59), 711(41), 843(02), 844(119), 846(17), 894(12) in all measuring 14 bighas and 1 biswa out of the ancestral land and 42 bighas and 14 biswas in Nithari Patti situated within the Revenue Estate of Village Kirari, Suleman Nagar, Delhi. It has been further stated that the remaining land out of the said land had been sold off by late Sh. Chandgi Ram during his lifetime for the purposes of colonization. It has been further stated that after the death of late Sh. Chandgi Ram, the agricultural land mentioned in para no. 1 herein above, has devolved upon the plaintiff and the defendant no. 1 in equal shares in the capacity of sole surviving legal heirs in accordance with Section 50 of the DLR Act. It has been further stated that the plaintiff had acquired bhumidari Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 3/54 rights in respect of half share in the land left by late Sh. Chandgi Ram and the remaining half share has devolved upon the defendant no.1. It has been further stated that the defendant no. 1 being the eldest brother had been looking after the family affairs. It has been further stated that after the death of Sh. Chandgi Ram, the defendant no. 1 asked the plaintiff to sign the application for mutation of the land so that the land is mutated in favour of the plaintiff and the defendant no. 1 in equal shares. It has been further stated that the plaintiff signed an application and other documents given by the defendant no.1. It has been further stated that the application signed by the plaintiff was filed by the defendant no. 1 before the Tehsildar on the basis of which, a mutation order dated 22.09.1988 was passed in favour of the plaintiff. It has been further stated that the defendant no. 1 also stated to the plaintiff that he wanted to get the remaining half share of the land to be mutated in the name of his sons to which the plaintiff had no objection. It has been further stated that till September 2001, when the defendant no. 1 filed an appeal against the mutation order dated 22.09.1988, the plaintiff never looked into the family affairs either during the lifetime of late Sh. Chandgi Ram or even after his death being the youngest son. It has been further stated that the plaintiff never obtained any revenue records as he was under the bonafide belief that the defendant no.1, being the eldest son, was looking after the affairs of the family in a proper manner. It has been further stated that Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 4/54 whole of the land including the half share of the defendant no. 1 was always been cultivated by the plaintiff as the defendant no. 1 was not residing in the village and he never involved himself in the agricultural work. The plaintiff has alleged that he is in cultivatory and physical possession of the entire land. The plaintiff has alleged that in the month of July - August 2001, the plaintiff became suspicious of the conduct of the defendant no. 1. It has been further stated that from the independent inquiry made by the plaintiff from the revenue staff, the plaintiff came to know that defendant no. 1 had got executed a registered GPA dated 05.06.1997. It has been further stated that it also transpired that the said GPA was bearing the thumb impression of late Sh. Chandgi Ram. It has been further stated that on the basis of the said GPA, the defendant no. 1 executed two sale deeds in favour of the defendant no. 2 and 3. The plaintiff has alleged that late Sh. Chandgi Ram, who was above 90 years of the age in 1997 never appointed the defendant no. 1 as his attorney to sell off his land. The plaintiff has further alleged that at the time of his death in the year 1998, late Sh. Chandgi Ram was a patient of chronic diabetes and he was not maintaining good health. It has been further stated that a bare perusal of GPA reveals that the defendant no. 1 has played a fraud upon late Sh. Chandgi Ram. It has been further stated that the GPA must have been got executed by the defendant no. 1 by not disclosing the true facts to the deceased defendant no.1. It has been Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 5/54 further stated that late Sh Chandgi Ram was a simple and illiterate man not conversant with English language. It has been further stated that the contents of the GPA which have been written in English could not have been understood by him. It has been further stated that the factum of the execution of GPA was also not in the knowledge of any other family members. It has been further stated that otherwise also, late Sh. Chandgi Ram used to sign in Urdu and he never put his thumb impression on any document. It has been further stated that during his lifetime, late Sh. Chandgi Ram had executed various documents of conveyance while selling off his land to different persons and all the said documents have been signed by him. It has been further stated that late Sh. Chandgi Ram was also having bank accounts and one of such account was with Syndicate Bank. It has been further stated that late Sh. Chandgi Ram also obtained loans from the Bank and all the applications filed by him for obtaining the loans were signed in Urdu and as such, it is apparently clear that the GPA has not been executed by him. It has been further stated that the deceased Sh. Chandgi Ram had always been residing with the plaintiff and he was being looked after by the plaintiff. It has been further stated that during his old age, all the amenities of life were being provided to late Sh. Chandgi Ram by the plaintiff and his daily expenses were also being borne by the plaintiff. It has been further stated that there was no necessity for the deceased Sh. Chandgi Ram to sell off or Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 6/54 transfer his land in favour of the sons of the defendant no. 1. It has been further stated that no consideration was ever paid by the defendant no. 1 to the deceased Sh. Chandgi Ram and the possession of the land was also never transferred by late Sh. Chandgi Ram to the defendant no.1. It has been further stated that the possession of the land has also never been transferred to the defendants no. 2 and 3 as well. It has been further stated that both the sale deeds in favour of the defendants no. 2 and 3 are also without any consideration. It has been further stated that the GPA as well as the two sale deeds are sham transactions and the same do not confer any right, title or interest on the defendants. It has been further stated that the two sale deeds are in contravention of Section 33 of the Delhi Land Reforms Act, 1954 because at the time of execution of the two sale deeds, late Sh. Chandgi Ram was having less than 8 standard acres of the land. It has been further stated that after coming to know about the fraud played by the defendant no. 1 in the month of July - August 2001, the plaintiff approached the defendant no. 1 and enquired about the fraud. It has been further stated that instead of giving any appropriate reply, the defendant no. 1 became agitated and threatened the plaintiff that he will grab all of the land left behind by late Sh. Chandgi Ram. It has been further stated that in furtherance of his threat, defendant no. 1 has already filed an appeal against the mutation orders. It has been further stated that the appeal preferred by the defendant no. 1 Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 7/54 has been accepted and the case has been remanded back to the Tehsildar and the plaintiff herein has already preferred an appeal, which is pending disposal before the Deputy Commissioner. It has been further stated that prior to July - August 2001, the plaintiff was not aware of either the GPA or the above said two sale deeds. It has been further stated that the above said documents have cast a cloud over the title of the plaintiff. It has been further stated that the defendants on the basis of the said documents are threatening to interfere in the peaceful possession of the plaintiff and hence, the present suit.

3. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree of cancellation of the two sale deeds being documents no. 10138 registered in Additional Book no. 1, Volume no. 491, at pages 148150 and the document no. 10139 in Additional book no. 1, Volume no. 491, at pages no. 151153. It has been further prayed that the said two sale deeds be declared as null and void. The plaintiff has further prayed that the GPA dated 05.06.1997 be also declared as null and void. It has been further prayed that the defendants and their agents etc. be restrained from interfering into the peaceful possession of the plaintiff in respect of land, which is the subject matter of the present suit and the defendants be further restrained from dispossessing the plaintiff from the suit property without due process of the law.

Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 8/54

4. Written statement has been filed on record by the defendants stating therein that the plaintiff is seeking the declaration of bhumidari rights in the guise of cancellation of the sale deeds and as such, this Court has no jurisdiction to entertain and try the present suit. It has been further stated that the present suit is barred by the law of limitation because the GPA is dated 05.06.1997 and two sale deeds in favour of the defendants no. 2 and 3 are dated 02.12.1997. It has been further stated that the present suit which has been filed in the year 2003 is barred by the provisions of law of limitation. It has been further stated that the plaintiff is not in possession of the suit land and as such, he cannot seek any declaration without seeking the consequential relief of possession. It has been further stated that the value of the land in question is more than 20 Lacs approximately and as such, the present suit is beyond the pecuniary jurisdiction of this Court. It has been further stated that the plaintiff has concealed the material facts from this Court and the present suit is without any cause of action. It has been further stated that the plaintiff has also filed the appeals before the Ld. Deputy Commissioner, Kanjhawala bearing appeal no. 06/2003 and 07/2003 with regard to the suit land. It has been further stated that the pleas put forward by the plaintiff in the appeals are contradictory to the allegations as levelled by him in the present suit against the defendants.

5. On merits, the defendants have admitted the relationship in Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 9/54 between the parties to the present suit. The defendants have admitted that late Sh. Chandgi Ram was the owner of 118 Bighas and 9 Biswas of the land in the Revenue Estate of Kirari, Suleman Nagar, Karala, Delhi known as Kirari Patti to the extent of 3/4th share out of the Khasras as stated by the plaintiff. The defendants have further stated that the remaining 1/4th share stood in the name of one Sh. Shyam Sunder, natural brother of the plaintiff and the defendant no. 1, who was adopted by Sh. Kishan Chand, paternal uncle of the plaintiff. The defendants have taken the stand that the said position remained effective upto 1986 with regard to the said property of Kirari Patti. It has been further stated that later on, Sh. Chandgi Ram and Sh. Shyam Sunder sold their respective shares i.e. 3/4th share and 1/4th share jointly in the land of Kirari Patti to several persons and at the time of death of late Sh. Chandgi Ram, only 14 bighas and 1 biswa out of the said land of 118 bighas and 9 biswas was left behind. It has been further stated that at the time of his death, late Sh. Chandgi Ram was having only 1/4th share in the remaining land of 14 bighas, 1 biswa of Kirari Patti because during his lifetime, late Sh. Chandgi Ram had sold 2/4th share out of his 3/4th share in the total land in property bearing Khasra nos. 710(59), 711(41) to the defendant no. 1 through registered GPA and registered Will dated 05.06.1997. It has been further stated that an agreement to sell, receipt and affidavit, all dated 05.06.1997 were also executed by late Sh. Chandgi Ram. It has been Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 10/54 further stated that late Sh. Chandgi Ram had also executed another affidavit on the same day mentioning therein that he had affixed his left thumb impression instead of putting his signatures on the said documents as his hands were wavering. It has been further stated that the defendant no. 1 sold that share which had been bought from late Sh. Chandgi Ram to defendant no. 2 and 3 by two separate registered sale deeds dated 02.12.1997. It has been further stated that the above said 2/4th share which Sh. Chandgi Ram had sold to the defendant no. 1 was his self acquired property and the remaining 1/4th share was inherited by late Sh. Chandgi Ram. It has been further stated that the total land falling in Nithari Patti, Village Kirari, Suleman Nagar, Delhi was 110 bigas. It has been further stated that Sh Chandgi Ram had bought the total share of Sh. Baldev Singh i.e. 2/4th share in the abovesaid total land of two patties measuring 118 bighas 9 biswas in Kirari Patti and 110 bighas in Nithari Patti in 1963 through sale deeds and he was, thus, the recorded owner/ bhumidar of 3/4th share of the total land mentioned above in the revenue records and 1/4th share was being owned by his brother Sh. Kishan Chand. It has been further stated that both Sh. Chandgi Ram and Sh Shyam Sunder jointly sold the portions of the land to various persons for the purposes of colonization prior to the year 1997. It has been further stated that the total land left with Sh. Chandgi Ram and Sh. Shyam Sunder in 1997 was 14 bighas, 1 biswa in Kirari Patti and 42 bighas and 14 biswas in Nithari Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 11/54 Patti. It has been further stated that Sh. Chandgi Ram had 3/4th share upto 05.06.1997 and Sh. Shyam Sunder was having 1/4th share in the above mentioned two pieces of land. The defendants have admitted that Sh. Chandgi Ram expired on 18.08.1998. The defendants have further stated that Sh. Chandgi Ram, at the time of his death was having only 1/4th share in the above mentioned remaining land of 14 bighas, 1 biswa of Kirari Patti because out of his total 3/4th share, he had already sold 2/4th share (half undivided share in the total land) to his son Sh. Mahender Singh on 05.06.1997.

6. It has been further stated that out of his 3/4th share in the land bearing Khasra no. 843 (02), 844(119), 846(17), 894(12), total area measuring 4 bighas, 10 biswas, Sh. Chandgi Ram sold 2/4 th share of his share in the land to the defendant no. 1 vide registered GPA, registered Will, receipt, Agreement to Sell, Affidavit, all dated 10.03.1998.

7. It has been further stated that acting on the documents executed by Sh. Chandgi Ram, the defendant no. 1 herein executed two sale deeds dated 02.12.1997 in favour of the defendant no. 2 and 3. It has been further stated that at the time of his death, late Sh. Chandgi Ram was having only 1/4th share in the total remaining land of 14 bighas 1 biswa in Kirari Patti and 42 bighas, 14 biswas in Nithari Patti. It has been further stated that the plaintiff filed an application for mutation in respect Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 12/54 of 1/4th share of Sh. Chandgi Ram in the above mentioned remaining properties before the Revenue Authorities on 08.09.1998 on the basis of false and fabricated affidavits in collusion with his brother in law Sh. Jai Bhagwan stating therein that the plaintiff was the sole legal heirs of late Sh. Chandgi Ram. It has been further stated that the revenue staff carried out the mutation in the name of the plaintiff in an illegal manner on 22.09.1998. It has been further stated that the defendant no. 1 after coming to know about the said malafide act of the plaintiff, lodged a complaint with the police and a complaint before the Ld. CMM, Delhi. It has been further stated that an FIR has already been registered against the plaintiff herein and against Sh. Jain Bhagwan as well by the orders of the Ld. MM. It has been further stated that the defendant no. 1 filed an appeal against the order of mutation dated 22.09.1998 and the said orders were set aside by the Ld. Collector on 17.09.2002. It has been further stated that the mutation carried out in the name of the plaintiff was set aside in respect of both the parcels of the land in Kirari Patti and Nithari Patti. It has been further stated that subsequent to the orders dated 17.09.2002, the Revenue Authorities have now mutated 1/8th share each in the name of the plaintiff and the defendant no. 1 on 23.12.2002. It has been further stated that the present suit filed by the plaintiff is a counterblast to the criminal case filed by the defendant no. 1. It has been further stated that the land sold by late Sh. Chandgi Ram to the defendant Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 13/54 no. 1 was his self acquired property which was purchased by him in 1963 from the other cosharers namely Smt. Jai Dei and Smt. Resham Kaur, both daughters of Sh. Baldev Singh. It has been further stated that after the sale of the land by Sh. Chandgi Ram to the defendant no. 1, the possession of the same was also handed over to him and later on, the possession of the said land was handed over to the defendant no. 2 and 3 by the defendant no. 1 after the sale of the land to the defendant no. 2 and 3 by the defendant no. 1. The defendants have denied that the GPA dated 05.06.1997 was got executed by playing fraud upon late Sh. Chandgi Ram. It has been further stated that FIR no. 61/2002 U/s 420/120B of the IPC PS Khanjawal, Delhi has already been got registered against the plaintiff. It has been further stated that the application for bail filed by the plaintiff herein was dismissed. It has been further stated that the conditional interim bail was granted to the plaintiff and to his brother in law Sh. Jai Bhagwan on the condition that the plaintiff shall get the mutated dated 22.09.1998 cancelled. It has been further stated that the plaintiff gave in writing before the Ld. DC, Khanjawla in appeal bearing no. 143/2001 and 144/2001 filed by the defendant no. 1 that the plaintiff had given wrong information to the Nayab Tehsildar and because of the wrong information, the wrong mutation dated 22.09.1998 had taken place. It has been further stated that the appeals preferred by the defendant no. 1 have already been allowed and the case have already been Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 14/54 remanded back to the Nayab Tehsildar. It has been further stated that defendant no. 1 had shifted to Delhi 25 years ago. The defendant no. 1 has taken the stand that he has no interference in the family affairs. Defendants have denied that defendant no. 1 asked the plaintiff to sign on an application for mutation. The defendants have denied that the said application was filed by the defendant no. 1 before the Tehsildar. The defendants have alleged that the plaintiff is a man of evil designs and educated person. The defendants have alleged that the plaintiff has already committed cheating and fraud upon the defendant no. 1 by giving in writing that he was only the son of late Sh. Chandgi Ram. The defendants have taken the stand that they were not residing in the village, but they cultivated their shares of the land from their residence at city. It has been further stated that the defendants are self cultivating the land and are the owners, bhumidars and in physical possession of their respective shares i.e. 1/8th, 1/4th and 1/4th in the two portions of the land. The defendants have admitted that the GPA dated 05.06.1997 and other documents as well are having the thumb impression of late Sh. Chandgi Ram, but the defendants have taken the stand that the said documents were executed by late Sh. Chandgi Ram after the receipt of the sale consideration from defendant no.1. It has been further stated that on the basis of the documents in favour of the defendant no. 1, defendant no. 1 executed two registered sale deed dated 02.12.1997 in favour of the Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 15/54 defendants no. 2 and 3. It has been further stated that defendant no. 1 was not merely a GPA holder of late Sh. Chandgi Ram, but he had also purchased the said land from Sh. Chandgi Ram by virtue of the documents dated 05.06.1997. It has been further stated that late Sh. Chandgi Ram himself applied for the NOC with the Revenue Authorities for the sale of the land and the said fact is well within the knowledge of the plaintiff and other family members. The defendants have denied that late Sh. Chandgi Ram was a patient of chronic diabetes in the year 1998. The defendants have denied that late Sh. Chandgi Ram was not maintaining good physical and mental health. The defendants have stated that late Sh. Chandgi Ram was never admitted in any hospital during his lifetime. The defendants have further stated that the documents dated 05.06.1997 were executed by late Sh. Chandgi Ram after fully understanding the contents of the same. The defendants have further stated that if the defendant no. 1 had played fraud upon his father, then why he did not get executed the documents of the entire land. It has been further stated that late Sh. Chandgi Ram had appeared before the Sub Registrar for registration of the registered GPA and registered Will dated 05.06.1977. It has been further stated that late Sh. Chandi Ram sold his properties through so many sale documents to different persons and all those documents are in English. The defendants have taken the stand that late Sh. Chandgi Ram had learnt to sign in Urdu and sometimes, he used Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 16/54 to sign and sometimes, he used to put his thumb impression on the sale documents . It has been further stated that there is one sale deed executed by late Sh. Chandgi Ram and Sh. Shyam Sunder jointly in favour of Sh. Rajinder Singh and there is another sale deed in favour of Sh. Gopal Singh Rawat. It has been further stated that both the said sale deeds are bearing only the thumb impression of late Sh. Chandgi Ram. It has been further stated that there are several other documents executed by late Sh. Chandgi Ram in which he has put his thumb impression. It has been further stated that from the year 1996 onwards, the hands of late Sh. Chandgi Ram started wavering and as such, he started putting his thumb impression. It has been further stated that moreover, the said documents have been executed in the presence of Sh. Daya Chand Verma, who is a witness to the said documents. The defendants have admitted that Sh. Chandgi Ram was having the bank account including one with the Syndicate bank. The defendants have admitted that late Sh. Chandgi Ram used to obtain loans by signing on the applications for loan, but the defendants have taken the stand that the said fact does not render the documents in question as illegal and invalid. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with the exemplary costs.

8. Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 17/54 and denying the contents of the written statement filed by the defendant.

9. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 07.07.2003.

1) Whether this Court has got no jurisdiction to try and entertain the present suit? OPD.

2) Whether the suit is barred by limitation as so alleged in the preliminary objection no.2 of the W.S.? OPD.

3) Whether the suit is not maintainable in its present form as so alleged in the preliminary objection no.2 of the w/s.? OPD.

4) Whether this Court has no pecuniary jurisdiction to try and entertain the present suit as so alleged in the preliminary objection no.4 of the w/s? OPD.

5) Whether the plaintiff has not paid the proper Court fees?

OPD.

6) Whether the plaintiff is entitled for a decree of cancellation of deeds as so prayed in para no. i of the prayer clause of the plaint? OPP.


       7)   Whether   the   plaintiff   is   entitled   for   a   decree   of 

          declaration   as   so   prayed   in   para   no.   i   i     of   the   prayer 

          clause of the plaint? OPP.

8) Whether the plaintiff is entitled for permanent injunction Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 18/54 as so prayed in para no. i i i of the prayer clause of the plaint? OPP.

9) Relief.

10. Now coming to the suit no. 149/14, the factual position as narrated by the parties in their respective pleadings is the same as is in suit bearing no. 148/14. In the present suit, the plaintiff has challenged the registered GPA dated 10.03.2008 coupled with the registered Will dated 10.03.2008, affidavit, agreement to sell etc. The plaintiff has also challenged the sale deed dated 13.05.2008 executed by the defendant no. 1 in favour of the defendants no. 2 and 3.

11. Vide orders dated 21.08.2003, the Ld. Predecessor of this Court was pleased to frame the following issues in the suit bearing no. 149/14 :

1) Whether the plaintiff is entitled to the relief of declaration, as prayed for?OPP.

2) Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for?OPP.

3) Whether the suit is barred by Delhi Land Reforms Act? OPD.

4) Whether the suit is barred by Limitation?OPD.

5) Whether the suit is barred U/s 34 of the Specific Relief Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 19/54 Act?OPD.

6) Whether this Court has no pecuniary jurisdiction to try the present suit?OPD.

7) Whether the plaintiff has not paid proper court fees?OPD.

8) Relief.

Evidence in Suit no. 148/14 :

12. The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit as Ex. PW1/A and the copy of the death certificate of Sh. Chandgi Ram as Ex. PW1/1.

13. The plaintiff has further examined Sh. Surinder Pal Singh, Halka Patwari, Village Kirari, Suleman, Delhi as PW2.

14. The plaintiff has further examined Sh. Vinod Rathi, Clerk of the Syndicate Bank, Nangloi, Delhi as PW3 and this witness in his examination in chief has filed on record the photocopy of the form for withdrawal no. 646903 dated 02.07.1997 as Ex. PW3/A showing the withdrawal of amount of Rs. 1.60 Lacs on 02.07.1997 from the account of late Sh. Chandgi Ram.

15. The plaintiff has further examined Sh. Surender Patwari from Mehrauli Tehsil as PW4 and this witness has filed on record the Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 20/54 Khatoni of the property of Khasra no. 151 for the year 199394 as Ex. PW4/A.

16. The defendant no. 1 has examined himself as DW1 and in his evidence by way of affidavit Ex. DW1/A on record, he has reiterated and reaffirmed the stand as taken by the defendants in the written statement. This witness has filed on record the registered GPA, registered Will, Agreement to Sell, the receipt, the affidavit, all dated 05.06.1997 for a consideration of Rs. 4.9 Lacs as Ex. DW1/1 to Ex. DW1/13, the registered GPA, the registered Will, Agreement to Sell and affidavit, all dated 10.03.1998 as Ex. DW1/A1 to Ex. DW1/A5, the sale deed dated 13.05.1998 in favour of the defendants no. 2 and 3 as Ex. DW1/15, the sale executed by Sh. Narender Singh as Ex. DW1/14, the sale deeds dated 02.12.1997 in favour of the defendants no. 2 and 3 as Ex. DW1/14 and Ex. DW1/15 etc.

17. The defendants have further examined Sh. Daya Chand Verma as DW2. This witness in his evidence by way of affidavit has stated that he is a witness in the documents executed by late Sh. Chandgi Ram in favour of defendant no. 1 and in the documents executed by the defendant no. 1 in favour of the defendants no. 2 and 3.

18. The defendants have further examined Sh. Jai Narayan, UDC, from the office of SubRegistrar, Kashmere Gate, Delhi as DW3 and this witness has filed on record the certified copy of the sale deeds as Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 21/54 Ex. DW3/1 to DW3/2.

19. The defendants have further examined Sh. Kishan Kumar, Patwari as DW4 and this witness has filed on record Khatoni for the year 200304 as Ex. DW1/16 and Ex. DW1/17.

20. The defendants have further examined HC Satbir Singh as DW5 and this witness has placed on record the copy of the FIR bearing no. 61/02 as Ex. DW5/A. Evidence in Suit bearing no. 149/14 :

21. The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit as Ex. P1.

22. The cross examination of PW1 Sh. Mahender Singh done on 24.01.2009, on 26.04.2011, on 02.06.2011, on 16.08.2011, on 04.01.2012 and on 31.08.2012 is on record of this file.

23. The defendants have further examined Sh. S.K. Vashishth, office Kanoongo, from the office of SDM, Kanjhwala as DW4 who produced on record the mutation file titled as Braham Prakash Vs. Chandgi Ram and he placed on record the certified copy of the documents as Ex. DW4/1 to Ex. DW4/17.

Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 22/54

24. The defendants further examined HC Karambir as DW5 and he placed on record the copy of the FIR no. 61/02 as Ex. DW5/1.

25. The defendants have further examined Sh. Sunil Kumar, UDC, from the office of Sub RegistrarI and this witness brought the registered GPA dated 05.06.1997. The said GPA already exhibited as Ex. DW1/1.

26. The defendants have further examined Sh. Shekhar Sharma, Kannongo as DW7 and this witness stated that NOC nos. 7384 and 7385 dated 28.11.1997 and 24.11.1997 were not available in his office.

27. The defendants have further examined Sh. Om Prakash, LDC, from the office of the Sub Registrar, Pitampura, Delhi as DW8 and this witness brought the summoned record with respect to the registered GPA and registered Will. Both of the said documents were already exhibited as Ex. DW1/A1 and Ex. DW1/A2.

28. The detailed testimonies of these witnesses shall be discussed during the later part of the judgment.

29. I have carefully gone through the entire material available on record and heard the rival submissions of Ld. counsels for both the parties. Ld. Counsel for the defendants has also filed on record the written final arguments. I have also carefully gone through the written final arguments filed on record by the defendants.

30. My issuewise finding on the abovesaid issues is as under: Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 23/54

Issues No. 6, 7 & 8 in Suit no. 148/14 and Issues no. 1 and 2 in Suit no. 149/14 :

31. Issues no. 6 to 8 in the Suit no. 148/14 pertain to the prayer clause of the said suit, whereas the issues no.1 and 2 in the Suit no. 149/14 also pertain to the prayer clause of the said suit. All the issues are to be proved by the plaintiff and the onus to prove all the said issues has been based upon the plaintiff. Vide orders dated 29.07.2004, the said suits have been clubbed by the Ld. Predecessor of this Court. Arguments have been advanced jointly in both the said suits by the Ld. Counsels for the parties.

32. Certain facts in both the suits are not in dispute. It is not in dispute that Late Sh. Chandgi Ram, the father of the plaintiff and the defendant no.1 as well was the owner of the property in question. It is also not in dispute that defendant nos. 2 and 3 are the sons of the defendant no.1. It is not in dispute that the defendant no.1 has the registered GPA and registered Will dated 05.06.97 coupled with the Agreement to Sell, receipt and affidavit etc. all dated 05.06.97 allegedly executed by Late Sh. Chandgi Ram. It is not in dispute that on the basis of the said GPA dated 05.06.97, defendant no. 1 executed the two sale deeds in favour of defendant no.2 and 3 on 02.12.1997. It is also not in dispute that in Suit no. 149/14, the defendant no.1 has the registered GPA Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 24/54 and registered Will dated 10.03.98 coupled with the Agreement to Sell, receipt and affidavit etc. all dated 10.03.98 allegedly executed by Late Sh. Chandgi Ram. It is also not in dispute that on the basis of the said GPA dated 10.03.98, the defendant no.1 executed the sale deed dated 13.05.1998 in favour of defendant no. 2 and 3.

33. The abovesaid documents dated 05.06.97, 02.12.97, 10.03.98 and 13.05.98, which are the subject matter of both the above said suits have been challenged by the plaintiff. The plaintiff has challenged the said documents on the ground that late Sh. Chandgi Ram was about 90 years old in 1997 and he never appointed the defendant no.1 as his Attorney to sell off his land. The plaintiff has further averred that at the time of his death in the year 1998, Late Sh. Chandgi Ram was the patient of chronic diabetes, was not maintaining good health and was not in sound mental health. The plaintiff has further alleged that the GPA must have been got executed by the defendant no.1 by misrepresentation and fraud. The plaintiff has further alleged that Late Sh. Chandgi Ram was a simple and illiterate man not conversant with English language. The plaintiff has alleged that the contents of the GPA written in English could not have been understood by him. The plaintiff has further alleged that the deceased Sh. Chandgi Ram never used to put his thumb impression on any document and he always used to sign in Urdu. The plaintiff has further alleged that Late Sh. Chandgi Ram had always been residing with Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 25/54 him and no consideration amount was received by him for executing the said documents. It has been further argued that there was no necessity for Late Sh. Chandgi Ram to execute the said documents. It has been further argued that no NOC was obtained by Late Sh. Chandgi Ram at the time of alleged execution of the GPA, whereas the NOC was obtained at the time of the execution of the sale deed by defendant no.1 in favour of defendant no.2 and 3 and that too not by defendant no.1, but by Late Sh. Chandgi Ram. It has been further argued that in all the other documents referred to in the written statement, not only the thumb impressions of Late Sh. Chandgi Ram are there, but the signatures of Late Sh. Chandgi Ram was also there. But whereas the above said documents which are the subject matter of the both the said suits, merely contain the alleged thumb impression of Late Sh. Chandgi Ram. It has been further argued that the testimony of DW2 Sh. Daya Chand Verma is not at all reliable. It has been further argued that the para nos. 5 to 8 of the affidavit of DW1 are beyond the pleadings. It has been further argued that cross examination of DW1 and DW2 in itself is sufficient to demolish the stand of the defendants. It has been further argued that the plaintiff has been able to prove his case.

34. Whereas on the other hand, Ld. Counsel for the defendants in the written final arguments and orally as well has argued that the plaintiff has taken the contradictory stands. It has been further argued Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 26/54 that the plaintiff has admitted in the cross examination that Sh. Daya Chand Verma used to be a witness in the documents by Late Sh. Chandgi Ram for the sale of his properties. It has been further argued that DW1 has admitted the selling of the land by Late Sh. Chandgi Ram. It has been further argued that the thumb impression of Late Sh. Chandgi Ram were sent to the CFSL twice and the report of the CFSL is in favour of the defendants on both the occasions. It has been further argued that the plaintiff has not filed on record any document to falsify the stand of the defendants. It has been further argued that the plaintiff is not in possession of the property in question, but no relief for possession has been sought for by the plaintiff. It has been further argued that the relief of the declaration and cancellation of the documents without seeking the relief of the possession cannot be granted and as such, the said suits are not maintainable. Ld. Counsel for the defendants has relied upon the cross examination of PW1 and argued that the plaintiff has failed to prove his case.

35. The consistent stand of the plaintiff in the pleadings and in the cross examination as well is that the plaintiff has always been in the cultivatory and physical possession of the property in question. The plaintiff has alleged that the defendant no.1 has not been residing in the village and the defendants never remained in physical possession of the land in question. The stand of the defendants is that Late Sh. Chandgi Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 27/54 Ram handed over the physical possession of the property in question to the defendant no.1 on 05.06.97 at the time of the execution of the GPA and the defendant no. 1 handed over the physical possession of the property in question to the defendant nos. 2 and 3 at the time of the execution of the sale deeds in their favour. The defendants have time and again stated in the written statement that they have been in physical possession of the property in question.

36. The cross examination of DW1, i.e. the defendant no.1 was carried out in parts on so many dates. In the cross examination done on 16.08.11, DW1 states as under : "It is correct that I never obtained possession of the suit property. It is correct that suit property forms part of undivided share of my father's property. It is correct that the suit property was not identified on 05.06.1997 and till date. Vol. The suit property has been sown by me and I have its proof with me. It is correct that I have not shown the transaction of the sale from my father in any official records like Income Tax or Sales Tax and similarly, my sons have also not shown the said transaction as far as I know. It is wrong to suggest that the said transaction was not disclosed in any official records since no such sale had taken place."

Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 28/54

37. The abovesaid cross examination of none other, but defendant no.1 himself is sufficient in itself to falsify his stand that he was in physical possession of the suit land and that the physical possession of the suit land was handed over to him by Late Sh. Chandgi Ram on 05.06.1997 or on 10.03.1998 and further that the physical possession of the suit land was handed over by him to his sons i.e. defendant no.2 and 3 at the time of the execution of the sale deeds. It has to be seen that the abovesaid stand of the defendant no.1 as contained in his cross examination is not only contradictory to his stand as contained in the written statement, but also diametrically opposite to his stand as contained in the cross examination because in the cross examination as well, defendant no.1 has stated that he has been in physical possession of the property in question. This Court cannot loose sight of the fact that when the suit property was not identified till date as per the own admission of DW1, how the defendant no. 1 could have obtained the physical possession thereof.

38. The Hon'ble Supreme Court of India in the authority cited as 2011 (4) Civil Court Cases 558 (S.C.) titled as Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. has held that an immovable property cannot be sold except by way of a registered sale deed. The Hon'ble Supreme Court of India in the above stated authority Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 29/54 has held as under : "Transfer of Property Act, 1882, S. 54, Registration Act, 1908, S. 17 Transfer of immovable property Sale agreement, general power of attorney and Will do not convey any title nor create any interest in an immovable property Immovable property can be legally and lawfully transferred / conveyed only by a registered deed of conveyance."

(para no. 18 of the said authority): We have merely drawn attention to and reiterated the well settled legal position that SA/GPA/Will transaction are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyance. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said SA/GPA/Will transaction may also be used to obtain specific performance or to defend possession under Section 53 A of Transfer of Property Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 30/54 documents relating to 'SA/GPA/Will transactions has been accepted acted upon by DDA or other development authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision."

39. Needless to mention that the first document in favour of the defendant no.1 is the GPA dated 05.06.97 Ex. DW1/1 on record and the second document is the GPA dated 10.03.98 Ex. DW1/A1 on record. The sale deeds have been executed by the defendant no.1 in favour of defendant no.2 and 3 on the basis of the above said GPA dated 05.06.97 and the GPA dated 10.03.98. The Hon'ble Supreme Court of India in the authority titled as Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. has over ruled the position of the law as it was in Delhi prior to the said authority. In the authority cited as 94 (2001) DLT 841 titled as Asha M. Jain Vs. Canara Bank & Ors. and in the other authorities as well, the Hon'ble High Court of Delhi had held that the GPA, Will, Agreement to sell, receipt and the affidavit etc. coupled with the delivery of possession were the valid mode of transfer of the immovable properties in Delhi. In the case in hand, as discussed herein above, the possession of the property was never handed over to the defendants as per the own admission of the defendant no.1 in the cross Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 31/54 examination done on 16.08.11. As such, I have no hesitation to hold that the abovesaid GPA dated 05.06.97 and the GPA dated 10.03.98 coupled with the registered Will, affidavit and the receipt etc. cannot be termed as the transaction of sale. As such, I am of the opinion that on the basis of the abovesaid documents, the defendant no.1 was not competent to execute the sale deeds in favour of his sons i.e. defendants no. 2 and 3.

40. It has to be further seen that in the cross examination done on 16.08.2011, DW1 has categorically admitted that he did not obtain any NOC prior to the execution of the sale deed in favour of his sons. DW1 further states that however, the NOC was obtained by his father from Kanjhwala in the name of the sons. DW1 further states that his father had applied for obtaining the NOC in the name of the defendants no. 2 and 3 and he did not apply the said NOC as his Attorney. DW1 admits it to be correct that he was authorized by late Sh. Chandgi Ram prior to applying for the NOC. I am of the opinion that Ld. Counsel for the plaintiff has rightly argued that no NOC was obtained at the time of alleged transfer of the land by late Sh. Chandgi Ram in favour of the defendant no. 1 and that NOC was obtained at the time of the execution of the sale deeds by defendant no. 1 in favour of the defendants no. 2 and 3. There is no explanation as to why the NOC was obtained by late Sh. Chandgi Ram at the time of the execution of the sale deeds by the defendant no. 1 in favour of the defendants no. 2 and 3.

Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 32/54

41. The plaintiff has taken the stand in para no.7 of the plaint in Suit no. 148/14 that the deceased Sh. Chandgi Ram had always been residing with the plaintiff and he was being looked after by him. In counter para no.7 of the written statement, the defendants have denied the above said assertion of the plaintiff. In the cross examination done on 24.01.09, DW1 states as under : " My father was aged about 90 years in the year 1997. He died on 18.08.98. He had died all of a sudden at the native village. I was not present at the time of his death. He used to stay with me and my wife. I am a resident of Roop Nagar since last 30 years. My father never resided permanently at Roop Nagar, however, he used to visit me. I never looked after the land along with my father........ It is correct that Sh. Changi Ram used to live in village through out his life. Vol. He used to live with my wife and children. My wife is not having name in any ration card.(either at the village address or at the Roop Nagar address today). I am also not having any ration card in my name. My wife is also not having any Voter Identity card. Again said, he is having a I card at the village address."

42. It has to be seen that in counter para no.7 of the written Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 33/54 statement in Suit no. 148/14, the defendants have denied that Late Sh. Chandgi Ram was always residing with the plaintiff and that Sh. Chandgi Ram used to live in the village separately from the plaintiff. I am of the opinion that in the light of the above said cross examination of DW1, the defendants have failed to establish on record that Late Sh. Chandgi Ram was either residing with the defendants at the Roop Nagar address or with the wife and children of the defendant no.1 at the village address.

43. The plaintiff has categorically asserted that the GPA dated 05.06.97 and the GPA dated 10.03.98 were got executed by the defendant no.1 from Late Sh. Chandgi Ram by playing fraud upon him and by misrepresentation as well. The plaintiff has categorically asserted further that no consideration was ever paid by the defendant no.1 to Late Sh Chandgi Ram for the execution of the alleged GPA dated 05.06.97 and the GPA dated 10.03.98. The vital question to be considered by this Court is as to whether the plaintiff has been able to prove his abovesaid stand or not.

44. In the cross examination done on 26.04.2011, DW1 i.e the defendant no.1 states that for the purchase of the property of 26 bighas 2 biswas, he paid a sum of Rs. 4.90 lacs on 05.06.97 to his father and thereafter, he again paid him the amount of Rs. 70,000/ in cash on 10.03.98 for the transfer of 2 bighas and 5 biswas out of the 4 bighas and 10 biswas. In the same cross examination, DW1 further states that he is Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 34/54 not aware as to how the above mentioned sale consideration paid by him to his father was utilized by him. In the cross examination done on 02.06.11, DW1 states that at the time of the payment of the consideration, the witness Sh. D.C. Verma, the deed writer Sh. Garg and Sh. Braham Prakash (deceased Plaintiff) and his mother were present there. DW1 has further stated that he has paid the consideration amount to his father at his house. The deed writer Sh. Garg has not been examined by the defendants to prove the amount of the consideration. The defendant no.1 has also not examined his mother to prove the payment of amount by him to Late Sh. Chandgi Ram. The plaintiff has denied that any amount of consideration was paid by the defendant no.1 to Late Sh. Chandgi Ram. The only witness examined by the defendants is Sh. D.C. Verma, who has been examined as DW2 in suit no. 148/14. The said Sh. D.C. Verma in his cross examination had stated that Sh. Chandgi Ram took about 5 Lacs in cash from the defendant no.1 at the time of executing attorney in his favour and he took Rs. 70,000/ for another account. In this context, let us examine the testimony of Sh. D.C. Verma, who has been examined as DW2 by the defendants.

45. In suit no. 148/14 Sh. Daya Chand Verma has been examined by the defendants as DW2 and this witness in his evidence by way of affidavit Ex. DW2/A on record has stated that late Sh Chandgi Ram was very close to him and the relationship in between the said witness and Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 35/54 late Sh. Chandgi Ram continued till the death of late Sh Chandgi Ram. This witness has further stated in his affidavit that he used to call late Sh. Chandgi Ram as Chachaji and late Sh. Chandgi Ram used to discuss with him about his problems, property deals, money transactions and the family affairs. This witness has further stated that whenever late Sh. Chandgi Ram used to deal in his properties, he used to call the said witness for the purposes of the consultation. This witness has further stated that he stood as a witness in the sale and purchase transactions of the properties of late Sh. Chandgi Ram. This witness has further stated that generally, late Sh. Chandgi Ram did not use to put his signatures in any of the documents and on a very few occasions, he put his signatures in Urdu. This witness has further stated that late Sh. Chandgi Ram used to put his signatures in very compelling circumstances. This witness has further stated that late Sh. Chandgi Ram was seen by him signing only 23 times in his whole life and that whenever, late Sh. Chandgi Ram used to sell or purchase his property, he used to put his thumb impressions. This witness has further stated that he can identify the thumb impressions of late Sh Chandgi Ram. This witness has identified his signatures and the thumb impressions on the documents which are the subject matter of the abovesaid two suits.

46. First of all, it has to be seen that at the internal page no. 29 of the written statement as contained in suit no. 148/14, the stand of the Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 36/54 defendants is that late Sh. Chandgi Ram used to sign sometimes and sometimes he used to put his thumb impression on the sale documents. If compared to the abovesaid stand of the defendants in the written statement, the examination in chief of DW2 by way of affidavit is not only contradictory, but rather I am of the opinion that there is a vital shift of stand because in his examination in chief, DW2 has categorically asserted that late Sh. Chandgi Ram used to put his signatures in very compelling circumstances and that during his whole life, he had seen late Sh Chandgi Ram signing of the documents only 23 times. As such, I am of the opinion that the testimony of DW2 on this aspect of the matter cannot be relied upon at all.

47. Furthermore, it has to be seen that DW1 in the cross examination done on 02.06.2011 states as under : "No relinquishment deed was executed by my father in my favour in respect of any land including agricultural land and relinquishment deed to the extent of half share in the property bearing no. 1/16, Roop Nagar, Delhi was executed in my favour by my father. I do not remember the date, year and month of the execution of the said document. I do not remember whether the relinquishment deed as stated above was executed in the year 1996. I am having the same with me. After the Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 37/54 execution of the relinquishment deed as stated above, the hands of my father started trembling mode. I do not remember whether my father affixed the signatures or thumb impression on the relinquishment deed of the property relinquished in my favour. It is correct that my father was illiterate and he could sign in Urdu only."

48. Further in the cross examination done on 16.08.2011, DW1 states as under : "Along with the GPA, other documents like Will, Affidavit, Agreement for Sale, Receipt and extra affidavit were also typed on the same date as told by my father. Extra affidavit was got prepared by my father to show that he would be putting his thumb impression on the document of sale instead of his signatures as his hands were wavering (shivering). I cannot say whether the said affidavit was prepared along with the GPA or was prepared thereafter. The affidavit was prepared by my father since I had objected and had asked him to get it prepared since he had already signed a GPA in my favour earlier in respect of some other properties. I had asked my father to get the said affidavit prepared since he sometimes used to sign or sometimes he used to put his thumb impression. It is incorrect to suggest Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 38/54 that the said affidavit was not prepared by my father or that I have got it prepared after filing of the present suit. I am not aware whether I have produced the said documents or not."

49. Further in the cross examination done on 04.01.2012, DW1 has stated as under : "To the best of my knowledge, my father did not use to sign on any document in the year 1997. I am not aware whether my father had signed on 02.07.1997 while withdrawing cash from the Syndicate Bank."

50. In the light of the abovesaid cross examination of the defendant no. 1, I am of the opinion that the only inevitable conclusion is that DW1 has deposed diametrically opposite to the stand of the defendant no. 1 as contained in the written statement of the defendants with respect to the signatures and thumb impressions of late Sh. Chandgi Ram. As such, I am of the opinion that so far as the testimony of DW2, who is the sole attesting witness in the documents dated 05.06.1997, 02.12.1997, 10.03.1998 and 13.05.1998 is not reliable and trustworthy.

51. Furthermore, it has to be seen that DW2 Sh. Daya Chand Verma in the cross examination has stated that he cannot tell as to how much land was owned by late Sh. Chandgi Ram. DW2 further states that late Sh. Chandgi Ram did not tell him about the extent of the land owned Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 39/54 by him. DW2 further states that he cannot tell as to how much land he sold and on how many occasions. DW2 further states that he does not know if in 1997, late Sh. Chandgi Ram sold the land to anyone other than the defendant no. 1. DW2 further states that he does not remember on how many occasions, he signed as a witness on the sale documents. DW2 further states that he cannot tell as to how many years before 1997, he was called to sign as a witness on the documents other than in favour of the defendant. DW2 further states that Sh. Chandgi Ram used to sign on the documents of sale and purchase, but when his hands started trembling, he started putting his thumb impressions.

52. The abovesaid cross examination of DW2, to my mind, is diametrically opposite to his stand as contained in his evidence by way of affidavit. I have no hesitation to hold that the cross examination of DW2, if compared to his evidence by way of affidavit is sufficient in itself to establish on record that the testimony of the said witness is not reliable and trustworthy at all. DW2 after having stated about his close relationship with late Sh. Chandgi Ram in his affidavit has failed to disclose anything in his cross examination. Furthermore, in the affidavit, DW2 categorically asserts that generally late Sh. Chandgi Ram did not use to sign and he used to sign only in very compelling circumstances, but in the cross examination, DW2 states that late Sh. Chandgi Ram used to put his signatures and he started putting his thumb impressions only Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 40/54 when his hands started trembling.

53. Furthermore, it has to be seen that in his evidence by way of affidavit, DW2 states that late Sh. Chandgi Ram used to discuss with him his problems, property deals, money transactions and the family affairs as well. But in the cross examination, DW2 states that he does not know if Sh. Chandgi Ram had any bank account. DW2 further states that he does not know if late Sh. Chandgi Ram operated his bank account by signing till his death. As such, I am of the opinion that the testimony of DW2 does not inspire any confidence at all.

54. Furthermore, it has to be seen that the suit no. 148/14, the plaintiff has examined Sh. Vinod Rathi, Clerk from Syndicate Bank, Nangloi, Delhi and this witness has placed on record the withdrawal form no. 646903 dated 02.07.1997 for an amount of Rs. 1.60 Lacs from the Saving Funds Account no. 25037 of late Sh. Chandgi Ram as Ex. PW3/A.

55. In the cross examination, PW3 has stated that the signatures of the account holder on the withdrawal form are in Urdu and he does not know Urdu. But it has to be seen that the defendant no. 1 in his cross examination has categorically admitted in the cross examination done on 26.04.2011 that his father was maintaining a bank account in Syndicate Bank. The said withdrawal form is dated 02.07.1997. Perusal of the said withdrawal form reveals that below the signatures in Urdu on the said withdrawal form, Chaudhary Chandgi Ram has been written. The GPA Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 41/54 Ex. DW1/1 on record in favour of the defendant no. 1 which only bears the thumb impressions is dated 05.06.1997. As such, I am of the opinion that the defendants have failed to explain as to how all the documents dated 05.06.1997 and 10.03.1998 allegedly executed by late Sh. Chandgi Ram are bearing his thumb impressions only. It is pertinent to note here that none of the documents dated 05.06.1997 and 10.03.1998 is not bearing the signatures of late Sh. Chandgi Ram. I am of the opinion that the abovesaid withdrawal form Ex. PW3/A on record falsifies the stand of the defendants that the hands of late Sh. Chandgi Ram started wavering and that is why, he put his thumb impressions on all the documents dated 05.06.1997.

56. Ld. Counsel for the defendants has vehemently argued that the thumb impressions of late Sh. Chandgi Ram were sent to CFSL two times and both the times, the report which was put on record, is in favour of the defendants. It has to be seen that for the first time, the thumb impression of late Sh. Chandgi Ram were sent to the Finger Print Bureau, Malviya Nagar, New Delhi for comparison with his admitted thumb impressions and specimen thumb impressions. The questioned thumb impressions on the GPA dated 05.06.1997 Ex. DW1/1 on record were given the numbers as Q1 to Q7 and the questioned thumb impressions on the GPA dated 10.03.1998 Ex. DW1/A1 on record were given the numbers as Q8 to Q14. The admitted thumb impressions on the sale Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 42/54 deeds were given the numbers as A1 to A7 and the specimen thumb impressions were given the numbers as S2 to S22. The report dated 01.08.2005 reveals that the questioned thumb impressions Mark Q1, Q10, Q12 and Q13 were not identical with the admitted print marked as A8 on the ration card Ex. PW1/DX in the name of late Sh. Chandgi Ram. The report further states that the questioned thumb impressions Mark Q1, Q10, Q12 and Q13 on Ex. DW1/1 and Ex. DW1/A1 were not identical with the specimen prints as S3 to S11, S13 to S12 and S22 on the three sale deeds dated 01.02.1957, 11.10.1963 and 09.09.1963 respectively. The report further states that the rest of questioned prints could not be compared as the same were either partial, blurred or faint.

57. The questioned thumb impressions were again sent to CFSL, CBI, CGO Complex, Lodhi Road, New Delhi and the said CFSL submitted his report on 08.01.2008. The said report states that the questioned thumb impressions Mark Q10 was identical with the thumb impression marked as S21. The CFSL report further states that the rest of the thumb impressions could not be compared because the same were either faint or blurred.

58. The question is as to whether in the light of the abovesaid two reports, the abovesaid submission of Ld. Counsel for the defendants is tenable. It has to be seen that the first report submitted by the Finger Print Bureau is totally against the defendants. The first report Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 43/54 categorically states that the questioned thumb impressions Q1, Q10, Q12 and Q13 were not identical with the admitted prints. The second report only matches one questioned print marked as Q10 with the specimen thumb impression S21. The stand of the plaintiff is that the said GPA dated 05.06.1997 and 10.03.1998 was got executed by the defendant no. 1 from late Sh. Chandgi Ram by misrepresentation and fraud and he was not able to comprehend the contents of the said documents. It has to be seen that none of the said reports has been exhibited during the evidence by any of the parties. The settled law is that it is ultimately for the Court to see as to what weight is to be attached to a scientific opinion. I am of the opinion that in the light of the abovesaid two contradictory reports, no weight can be attached to the abovesaid two reports. I am of the opinion further that the abovesaid submission of the Ld. Counsel for the defendants is not sustainable in the light of the abovesaid discussion.

59. Ld. Counsel for the defendants has further argued that the plaintiff has not sought for the relief of possession and without seeking the relief of possession, the relief of declaration is not maintainable. I am of the opinion that the abovesaid submission of the Ld. Counsel for the defendants is fallacious because it has been held herein above that the defendants have failed to show that they are in possession of the property in question and the plaintiff has been able to show that he is in the physical possession of the property in question.

Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 44/54

60. Furthermore, it has to be seen that DW1 in the cross examination done on 16.08.2011 states as under : "The stamp papers or execution of GPA dated 05.06.1997 was purchased by my father and that time, my brother Sh. Braham Prakash was with him. Vol. I was not present at that time. The same was got typed by my father and Sh. Braham Prakash. At that time, I was present. Again said, at the time of typing, I was not present. It was after purchasing the stamp papers that after 23 days, I was told to my father that the documents were ready for execution."

61. In the light of the abovesaid cross examination of DW1, I am of the opinion that DW1 has not been able to tell about the purchasing of the stamp papers for execution of the GPA dated 05.06.1997 and about the execution of the said GPA as well.

62. Ld. Counsel for the plaintiff has argued that a compromise had taken place in both the said suits. It has to be seen that in the cross examination done on 04.01.2012, DW1 states as under : "It is correct that the compromise in the present suit with the plaintiff had taken place. I have seen the signatures appearing on the compromise application dated 17.08.2005, the same bears my signatures as well as the Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 45/54 signatures of my two sons and the signatures of the plaintiff. The same is Ex. DW1/Z1. It is wrong to suggest that as per the compromise recorded in Ex. DW1/Z1, the plaintiff had withdrawn the suit before the Hon'ble High Court filed by him in respect of property at Roop Nagar."

63. Perusal of the said compromise reveals that the defendant no. 1 had agreed to execute a relinquishment deed in favour of the plaintiff in respect of his 1/8th share recorded at present in his name. The said compromise is a detailed compromise whereby the plaintiff also agreed to withdraw his claim with respect to the house situated at Roop Nagar, but somehow, the said compromise could not be acted upon and as such, I am of the opinion that the said compromise is not going to help in deciding the controversy involved in the present suit.

64. Ld. Counsel for the defendants has further argued that the mutation has already been done in favour of the defendants in the revenue records. I am of the opinion that the settled law is that the entries in the revenue record does not confer any ownership right. This Court has to see as to whether the plaintiff has been able to prove his case by way of cogent and reliable testimony or not.

65. Ld. Counsel for the defendants has further argued that there is a registered Will dated 05.06.1997 in favour of the defendant no. 1 and Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 46/54 the testator Sh. Chandgi Ram has already expired. It has been argued that the Will has come into operation after the death of late Sh. Chandgi Ram. I am of the opinion that the abovesaid submission of the Ld. Counsel for the defendants is fallacious because the Will dated 05.06.1997 has been executed along with the GPA, Agreement to Sell, Affidavit and Receipt etc. and the Will forms part of the said set of documents. Furthermore, it has to be seen that as per Section 63 of the Indian Succession Act, a Will is required to be attested two or more witnesses, whereas in the case in hand, the said Will has been attested only by one witness namely Sh. D.C. Verma. The Hon'ble Supreme Court of India in the authority cited as 2003 VI AD (SC) 401 titled as Ramabai Padmakar Party (D) Through LRs & Ors. Vs. Rukminibai Vishnu Vekhande & Ors. has held that :

"Will - execution and proof of - Succession Act

- Section 62 - Testator to sign to put a mark - Evidence Act 1872 - Section 68 - Will to be attested by at least two witnesses - Examination of one of such witness necessary, irrespective of whether the Will is registered or not."

66. Last, but not the least, Ld. Counsel for the defendants has argued that there are contradictions in the testimony of PW1, which are apparent from the cross examination of PW1. Ld. Counsel for the Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 47/54 defendants has argued that PW1 i.e. the plaintiff in the cross examination has admitted that late Sh. Chandgi Ram and Sh. Shyam Sunder used to sell the land during their lifetime and as such, there was nothing wrong if the land was purchased by the defendant no. 1, who is the son of late Sh. Chandgi Ram from Sh. Chandgi Ram. To this extent, I agree with the Ld. Counsel for the defendants, but the crux of the controversy in the present suit is that as to whether the documents for sale and purchase which are the subject matter of the present suit were got executed by late Sh. Chandgi Ram by playing fraud and by misrepresentation as has been alleged by the plaintiff. As such, I am of the opinion that the abovesaid submission of the Ld. Counsel for the defendants does not hold much water.

67. Ld. Counsel for the defendants has further argued that an FIR No. 61/2002 U/s 420/120B IPC stands registered against the plaintiff and his brotherinlaw. It is true that the said FIR has been registered against the plaintiff and his brotherinlaw, but the question is as to whether the lodging of the said FIR against the plaintiff is going to have any impact on both the said suits or not. I am of the opinion that both the present suits are to be decided on its own merits on the basis of the pleadings of the parties, the documents available on record and the evidence led by the parties. Merely because an FIR stand registered against the plaintiff does not mean that the case of the plaintiff is false, to Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 48/54 my mind.

68. As has been argued by the Ld. Counsel for the defendants, it is true that there are certain contradictions in the testimony of PW1 if the cross examination of PW1 as contained in suit bearing no. 148/14 is compared with the cross examination of PW1 as contained in the suit bearing no. 149/14. But the settled law is that the testimonies of PWs and DWs as well are to be weighed by the Court as a whole. The Court has to see as to whether the test of preponderance of probabilities which is the litmus test in civil cases has been passed or not. If weighed on the scale of preponderance of probabilities, I am of the opinion that the testimonies of PWs appear to me to be more reliable and trustworthy as compared to the testimonies of DWs.

69. In the light of the abovesaid discussion, I have no hesitation to hold that the documents dated 05.06.1997 and 10.03.1998 cannot be termed as the transaction of sale. Furthermore, I am of the opinion that the plaintiff has been able to prove that the said documents were got executed by the defendant no. 1 by playing fraud and misrepresentation from Late Sh. Chandgi Ram.

70. As such, I am of the opinion that the plaintiff has been able to prove issues no. 6, 7 and 8 in suit bearing no. 148/14 in his favour and accordingly, I hereby decide the issues no. 6, 7 and 8 in suit no. 148/14 in favour of the plaintiff. I am also of the opinion that the plaintiff has been Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 49/54 able to prove issues no. 1 and 2 in his favour in suit no. 149/14 and as such, the said issues are decided in favour of the plaintiff in suit no. 149/14.

Issue no. 1 in suit no. 148/14 and issue no. 3 in suit no. 149/14 :

71. Ld. Counsel for the defendants has argued that the present suits are barred by Section 185 of the Delhi Land Reforms Act. As stated by me herein above, the present suits have been filed by the plaintiff with respect to the documents dated 05.06.1997, 02.12.1997, 10.03.1998 and 13.05.1998. The plaintiff has sought the relief of declaration and cancellation of the documents. I am of the opinion that the defendants have failed to point out as to how the said suits are barred by Section 185 of the DLR Act. Accordingly, I hereby decide both the abovesaid issues against the defendants and in favour of the plaintiff. Issue no. 2 in suit no. 148/14 and issue no. 4 in suit no. 149/14 :

72. The onus to prove both the abovesaid issues has been placed upon the defendants. The defendants in the written final arguments have argued that the present suits have been filed in the year 2003. It has been further argued that the plaintiff had the knowledge about the said documents when the plaintiff moved the application on 08.09.1988 for mutation before the Tehsildar. The plaintiff has claimed that he came to Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 50/54 know about the fraud played by the defendant no. 1 in July - August 2001. The plaintiff has further asserted that he became suspicious of the conduct of the defendant no. 1 and after making independent enquiry from the Revenue Staff, he came to know about the GPA dated 05.06.1997. Ld. Counsel for the defendants in the written final arguments has argued that no specific dates have been given by the plaintiff. It is true that no specific date has been given, but the month of July - August 2001 has been categorically mentioned by the plaintiff. I am of the opinion that the defendants have not been able to prove that the present suits are barred by the law of limitation and accordingly, I hereby decide both the abovesaid issues against the defendants.

Issue no. 3 in suit no. 148/14 :

73. In para no. 3 of the preliminary objections of the written statement filed by the defendants in suit bearing no. 148/14, the defendants have stated that the plaintiff has failed to seek the relief of possession and as such, the suit of the plaintiff is not maintainable. I have already dealt with this issue while dealing with the issues no. 6, 7 and 8. I have already given the finding that the said objection of the defendants is not sustainable.

74. In para no. 3 of the reply on merits of the written statement filed by the defendants, the defendants have taken the objection that the Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 51/54 plaintiff has not come to the Court with clean hands. I am of the opinion that the defendants have failed to establish on record by way of cogent and reliable testimony that the plaintiff has not come to the Court with clean hands. Accordingly, this issue is decided against the defendants. Issues no. 4 and 5 in suit no. 148/14 and issues no. 6 and 7 in suit no. 149/14 :

75. Suit no. 148/14 has been filed by the plaintiff for the relief of cancellation of the deeds and for permanent injunction. The plaintiff has valued the suit at Rs. 5 Lacs for cancellation of the sale deeds. The sale deeds dated 02.12.1997 have been executed for an amount of Rs. 2.5 Lacs. The plaintiff has valued the suit at Rs. 5 Lacs for the purposes of court fees and jurisdiction and has paid the court fees thereon. For the relief of declaration, the plaintiff has paid the court fees of Rs. 200/. Similarly, suit no. 149/14 has been valued at Rs. 30,000/ for the cancellation of the sale deeds. The sale deed dated 13.05.1998 executed by the defendant no. 1 in favour of his sons Sh. Satish Kumar and Sh. Gurdeep Singh is for an amount of Rs. 30,000/. As such, I am of the opinion that the defendants have failed to show as to how the present suits have not been valued properly for the purposes of court fees and jurisdiction. As such, I hereby decide the abovesaid issues against the defendants and in favour of the plaintiff.

Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 52/54 Issue no. 5 in suit no. 148/14 :

76. The defendants have taken an objection that the present suit be barred by Section 34 of the Specific Relief Act. I am of the opinion that the defendants have failed to establish as to how the present suit is barred by Section 34 of the Specific Relief Act. Accordingly, I hereby decide this issue against the defendants.

Relief in suit no. 148/14 :

77. In the light of my findings on the issues no. 6, 7 and 8, I hereby pass a decree of the cancellation of the sale deeds dated 02.12.1997 executed by the defendant no.1 in favour of the defendants no. 2 and 3. I also hereby declare that the GPA dated 05.06.1997 is null and void. A decree for permanent injunction is also hereby passed in favour of the plaintiff and against the defendants restraining the defendants from dispossession the plaintiff from the suit land illegally and forcibly without following the due process of law.

Relief in suit no. 149/14 :

78. In the light of my findings on the issues no. 1 and 2, I hereby pass a decree for cancellation of the sale deed dated 13.05.1998 executed by the defendant no. 1 in favour of his sons i.e. defendants no. 2 and 3. I also hereby pass a decree of declaration to the effect that the Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 53/54 GPA dated 10.03.1998 is null and void. A decree of permanent injunction is also hereby passed in favour of the plaintiff and against the defendants restraining the defendants from dispossessing the plaintiff illegally and forcibly without following the due process of law. Costs of the suit are also awarded in favour of the plaintiff.

Decree sheet be prepared accordingly by the Reader in both the suits. A copy of this judgment be also placed in both the said suits.

File be consigned to Record Room after due compliance.

Announced in the open court                                   (RAJ KUMAR)
on this 09th day of May, 2014.                              ADJ17 (Central)
                                                     Tis Hazari Courts, Delhi. 




Suit No. 148/14 (Old Suit no. 16/03) & Suit No. 149/14 (Old Suit no. 80/03) Page No. 54/54

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Delhi District Court

Sh. Amit Kumar S/O Late Sh. Braham ... vs Sh. Mahender Singh S/O Sh. Chandgi Ram on 9 May, 2014