Delhi District Court
Shri Karamvir Singh vs Shri Bhagwan Singh on 31 March, 2023
DLST010045022016
In the Court of Ms. Gurmohina Kaur: Additional District
Judge (South District) Saket Courts Complex, New Delhi
CS No.: 9025/2016
In the matter of :-
Shri Karamvir Singh
S/o. Bhagwan Singh
R/o. F-114, Lado Sarai,
Near Kali Mandir,
Bank Street, New Delhi .......Plaintiff
Versus
1. Shri Bhagwan Singh,
S/o. Raghbir Singh,
R/o. F-114 Ladoo Sarai,
Near Kali Mandir,
Bank Street, New Delhi.
2. Shri Dharmender,
S/o. Bhagwan Singh,
R/o. F-114 Ladoo Sarai,
Near Kali Mandir,
Bank Street, New Delhi.
3. Smt. Kanta
W/o. Shri Yatinder Malik
C/o. Smt. Saroj Tomar,
House No. 113/31, Ashok Vihar,
Behind Shiv Mandir,
Chouhan Colony, Near Sadar Police Station,
Sonipat, Haryana-131001.
4. Smt. Nirmala Goel,
W/o. Shri Naveen Goel,
CS 9025/16 Page 1 of 61
D/o. Shri Bhagwan Singh,
R/o. House No. 526, Lado Sarai,
Khokhre Wali Gali,
New Delhi.
5. Smt. Meenu
W/o. Shri Dharmender
R/o. F-114, Ground & First Floor,
Lado Sarai, New Delhi-110030.
6. Mr. Pradeep
S/o. Shri Mahender Singh,
Permanent ancestral R/o. 426,
Near Saheed Bhagat Singh Park,
Panya Udyan, Narela,
New Delhi-110040 ......Defendants
Date of institution : 23.09.2013
Arguments concluded on : 13.12.2022
Date of decision : 31.03.2023
JUDGMENT
1. The Plaintiff has filed the present suit seeking declaration, cancellation of documents, permanent injunction and rendition of accounts.
1.1. Facts as epitomized in the plaint are that the Plaintiff and Defendants no. 1 to 4 constitute a joint Hindu family and own ancestral co-parcenary property bearing no. F- 114, Lado Sarai, Near Kali Mandir, New Delhi measuring 100 square yards. It is stated that the property comprised in Khasra No. 176, Lado Sarai has been the ancestral property of the parties, along with certain tracts of land. It is stated that as per the revenue record of 1964-1965, the land was recorded in the name of Sh. Khanaiya, the Great Grandfather of the Plaintiff and after his death, the names of his five sons Raghubir Singh, CS 9025/16 Page 2 of 61 Rajpal Singh, Ishwar Singh, Karam Singh and Ajeet Singh were mutated in the revenue record. It is averred that the land was still mutated in the said five names in the revenue record till 2011- 2012. It is stated that the property bearing no. F-114, Lado Sarai, Near Kali Mandir, was with the branch of Defendant no. 2 and was measuring 100 square yards. It is stated that the said property was a joint Hindu Family property of the Plaintiff, Defendant no. 1 to 4 and the Plaintiff and Defendant no. 1 to 4 were the co owners to the extent of 1/5th share each in the ancestral property and are also in joint possession thereof. It is averred that the Plaintiff and Defendant no. 1 to 4 were also the joint owner of the ancestral co-parcenary property at Village Choma, Tehsil and District- Gurgaon.
1.2 It is further averred in the plaint that the Plaintiff and Defendant no. 2 reside on the second floor of the suit property, whereas Defendant no. 1 resides in the half portion of the third floor of the suit property, and the remaining half portion has been in common/joint use of occupation of the Plaintiff and Defendant no. 3. It is stated that the common portion on the third floor was in the joint occupation of the Plaintiff and Defendant no. 2. It is stated that the entire ground floor, entire first floor and two room on the terrace above the third floor were given to the tenants by the Defendants on monthly rental and the parties have been taking rent as per their share .i.e. 1/5th share each. It is averred that the area under Lado Sarai has been taken over by the Municipal Corporation of Delhi and no construction was permitted in the area without the permission of the authorities. However, the Defendant no. 1 and 2 despite the advice of the Plaintiff started carrying out massive unauthorized construction CS 9025/16 Page 3 of 61 in the property in July 2013 and the Plaintiff was compelled to file a suit for permanent and mandatory injunction before the Ld. Civil Judge-02/South/Saket Courts.
1.3 It is stated that the Defendant no. 1 & 2 had committed theft of electricity and the Plaintiff reported the matter to the BSES. A raid was conducted and the Defendants no. 1 & 2 were booked for theft for electricity. It is stated that in retaliation, the Defendant no. 1 & 2 disconnected the electricity supply of the Plaintiff compelling him to file another suit for injunction in which the Ld. ADJ, South granted interim directions to the Defendant no. 1 & 2 to restore the electricity supply of the portion of property with Plaintiff.
1.4 It is stated in the plaint that in the Civil Suit filed before the Ld. Civil Judge-02/South/Saket Court, the Defendants no. 1 & 2 filed their response wherein it was revealed that they had in collusion created false and fictitious documents to deprive the Plaintiff of his legitimate share in the suit property and it was further revealed that Defendant no. 1 & 2 had colluded with each other and created documents showing transfer of the said property in favour of Defendant no. 5 & 6. It is stated that the Defendant no. 5 was the wife of the Defendant no. 2 and the defendant no. 6 was the brother in law of Defendant no. 2 (Wife's brother). It is stated that it was revealed that Defendant no. 1 had created an Agreement to Sell dated 20.05.2013 for the entire ground floor and first floor of the suit property in favour of Defendant no. 5 and the sale consideration was shown at Rs. 20 lacs. It is further stated that the Defendant no. 1 had also executed a set of documents including indemnity bond, Will, CS 9025/16 Page 4 of 61 Affidavit, Receipt, GPA, Possession Letter all dated 20.05.2013.
1.5 The Defendant no. 1 further executed a deed of Power of Attorney on 20.05.2013 and the Will dated 20.05.2013 at Noida both in favour of Defendant no. 5. It is further stated that the Defendant no. 1 created an Agreement to Sell dated 17.07.2013 in respect of the entire second and third floor with terrace of the suit property in favour of Defendant no. 6 and the sale consideration was shown as Rs. 15 lacs. It is stated that the Defendant no. 1 also executed GPA dated 17.07.2013, affidavit dated nil, receipt dated Nil, Possession letter dated nil, in addition to a deed of Power of Attorney in favour of Defendant no. 6 registered at Noida in Bahi No. 4, Jild No. 872, pages no. 145-156 at Serial no. 3291. It is averred that the said defendant no.1 had also executed a will in favour of Defendant no. 6 dated 17.07.2013. It is further stated that Defendant no. 5 filed suit dated 05.08.2013 for specific performance, permanent injunction and damages against Defendant no. 1 in respect of the alleged Agreement to Sell dated 20.05.2013 in connection with the entire ground floor and first floor of the suit property. It is stated in the Plaint that Defendant no. 6 had also filed a suit dated 05.08.2013 for specific performance, permanent injunction and damages against Defendant no. 1 in respect of the alleged agreement to sell dated 20.05.2013 in connection with the entire second floor and third floor with terrace of the suit property. Both these suits were disposed off as compromised on 06.08.2013 by Ld. ADJ-03/South on the first day itself in terms of the statement of Defendant no. 1 that he would execute the sale deeds in favour of Defendants no. 5 & 6. It is averred by the Plaintiff that these facts show that the aforesaid suits between CS 9025/16 Page 5 of 61 Defendant no. 1 and Defendants no. 5 & 6 were collusive and the plaintiff in these circumstances sought withdrawal of the suit before Ld. Civil Judge to file a comprehensive suit and hence, this suit was filed.
1.6 It is further stated in the plaint that the actions of Defendant no. 1, 2,5 & 6 were illegal and liable to be set aside. It is stated that the transaction between Defendants no. 1 and 5 & 6 for the sale of the suit property was a result of fraud exercised between Defendants no. 1 and 2 in collusion with Defendant no. 5 & 6. It is stated that the suit property being ancestral co- parcenary property was jointly owned and was held by the Plaintiff and Defendant no. 1 to 4 to the extent of 1/5th share each and the Plaintiff has a pre-existing right in the suit property from his birth and share of the plaintiff in the suit property is inalienable.
1.7 It is stated that the document executed between Defendant no. 1 and Defendants no. 5 & 6 and the consequent collusive decrees are null and void, illegal, collusive and are liable to be set aside as the Defendant no. 1 was not entitled and had absolutely no right to transfer the share of the Plaintiff in favour of Defendant no. 5 & 6 by way of the alleged documents. It is further stated that the Plaintiff never accorded any consent to Defendant no. 1 to transfer the said property to Defendants no. 5 & 6 and the Defendant no. 1 had no locus standi to execute the agreement to sell along with other set of documents in favour of Defendants no. 5 & 6 in respect of the suit property. It is stated that these documents were executed with the malafide intention of grabbing the suit property as well as the rent being realized CS 9025/16 Page 6 of 61 from the same and the Defendant no. 1 & 2 had no right to create any obstructions in the right of the plaintiff to realize proportionate rent from the property in question.
1.8 It is further averred that the ancestral co-parcenary nature of the property was reflected in the revenue records and the property comprising in khasra no. 176, Lado Sarai had been the ancestral property of the parties along with other certain other tracks of lands and as per the revenue records of 1964- 1965, it was recorded in the name of Sh. Khanaiya, the great grandfather of the Plaintiff and after his death the name of his five sons was mutated in the revenue record. It is stated that the said property was measuring 100 square and was with the branch of defendant no. 2. It is also stated that the aforesaid chain of documents clearly proves that the suit property was the ancestral property and the Defendant no. 1 was neither the exclusive owner nor had exclusive possession of the suit property.
1.9 It is stated in the Plaint that the Power of Attorney and the Will dated 20.05.2013 executed/registered by Defendant no. 1 in favour of Defendant no. 5 mentioned the suit property being the ancestral property. It is stated that the GPA and the Will had been registered in favour of Defendants no. 5 and 6 at Noida, U.P in collusion with registering authority and neither the Defendant no. 1 nor Defendant no. 5 & 6 are residents of Noida and neither is the suit property situated at Noida and therefore the Sub-Registrar, Noida, UP had no jurisdiction to register such documents. It is stated that the decrees passed in the two civil suit CS No. 530/2013 and CS No. 531/2013 were null and void and void absentia being obtained with deception to usurp the CS 9025/16 Page 7 of 61 suit property and deprive the Plaintiff of his lawful rights in the suit property.
1.10 It is further averred that the Defendant no.1,2, 5& 6 had carried out unauthorized construction in the suit property which could weaken the structure of the suit property and had also violated the municipal bylaws, rules and regulations.
1.11 The Plaintiff has sought a decree of declaration by way of the present suit declaring that the Plaintiff is the co- parcerner/co-owner of the suit property bearing no. F-114, Lado Sarai, Part of Khasra no. 176, to the extent of 1/5th share. The Plaintiff has further sought a declarations that the documents executed by Defendant no. 1 in favour of Defendant no. 5 & 6 are illegal, null, void absentia and liable to the set aside and the decrees obtained by Defendant no. 5 & 6 in suit no. 530/2013 & 531/2013 on 06.08.2013 from Ld. ADJ-03/Saket as ineffective null and void absentia not conferring any right, title or interest in favour of Defendant no. 5 & 6. The Plaintiff also sought a decree of permanent injunctions restraining the Defendant no. 1,2, 5 & 6 from alienating/transferring/selling the suit property or obstructing or interfering with the possession of the Plaintiff or from carrying out any unauthorized constructions in the suit property. The Plaintiff further seeks a decree of rendition of account, directing the Defendants to render true and correct accounts of rents and profit received from the suit property w.e.f 01.07.2013 and the decree be passed in favour of the Plaintiff to the extent of his share in such rent/profit.
CS 9025/16 Page 8 of 612. Written Statement has been filed on behalf of Defendants no. 1, 2, 5 & 6, wherein it has been averred that the suit of the Plaintiff deserves dismissal as the Plaintiff in the garb of the present suit wants to claim partition and hence the present suit was barred by law.
2.1 It is stated that the Plaintiff being the son of Defendant no. 2 was not the class-I heir as enshrined in Schedule-I of the Hindu Succession Act and had no right to claim any type of relief whether it was of declaration, partition, claim of share in rent receipt or to maintain a suit of permanent injunction and mandatory injunction when the Defendant no. 1 i.e. the father was still alive and the suit was liable to be dismissed being not maintainable. It is stated that the relief sought by the Plaintiff could never be granted against the Defendant no. 1 and others as the Plaintiff in the garb of declaration has demanded 1/5th share when the erstwhile absolute owner Defendant no. 1 was still alive and it was against law that a son could not demand partition of property that came from the share of the father from whatever source it may be.
2.2 It is further stated that the Defendant no. 1 was constrained to sell the property and the suit filed by the Plaintiff was against the parties i.e. defendant no. 1 who had no right, title and interest in the suit property and it was also in the knowledge of the Plaintiff that the Defendants no. 2, 3 & 4 had no right, title or interest of any kind in the suit property. It is stated that now Defendant no. 5 & 6 were the absolute owner as the Defendant no. 1 had already sold the suit property in their favour and the Plaintiff was a licensee which had been recalled by Defendant CS 9025/16 Page 9 of 61 no. 1 on 12.07.2013, the date on which the Defendant was compelled to sell the property. It is stated that the Defendant no. 6 had already filed suit for possession against the Plaintiff which was pending before Ld. ADJ South. It is stated that the Plaintiff had filed a suit for partition and permanent injunction before Ld. Civil Judge, South, which was withdrawn as the suit was not maintainable and the Plaintiff had also filed a suit in Gurgaon Court, which the Plaintiff also withdrew on the same parameter that the Plaintiff could never claim any share when the father was alive.
2.3 It is stated that Defendant no. 1 was the absolute owner of the property in question and out of his own free will without any pressure, coercion or threat the Defendant no. 1 because of the unlawful activities of the Plaintiff was constrained to sell the property which he had already sold vide appropriate documents and had further given a statement before the Court that he would execute the Registered Sale Deed. It is submitted in the Written Statement that Defendant no. 1 was not left with any right, title or interest in the suit property. It is stated also that the Plaintiff had no authority to challenge the same and the Defendants no. 5 & 6 were the absolute owners of the suit property. It is stated that it was a matter of record that prior to alienation, only Defendant no. 1 was the absolute owner of the suit property without any kind of interference of anybody else. It is further denied that the suit property is a joint Hindu property of the Plaintiff and Defendants no. 1 to 4 or that the Plaintiff and Defendants no. 1 to 4 were the co-owners to the extent of 1/5th share each in the aforesaid property. It is further denied that the Plaintiff and Defendant no. 1 were the joint owners of the CS 9025/16 Page 10 of 61 ancestral co-parcenary property in Village Chauma, Tehsil & District - Gurgaon. It is stated that the Defendant no. 1 because of the goodness of Defendant no. 2 transferred the property in favour of Defendant no. 2. It is further denied that the entire ground floor, entire first floor and two room on the terrace above the third floor were given to tenants for monthly rental and it is stated that the ground floor and the first floor were in exclusive possession and occupation, use and utilization and power/domain of Defendant no. 5 and neither the Plaintiff nor Defendant no. 1 to 4 had connection of any kind and the two rooms above the third floor were in exclusive possession/occupation of Defendant no. 6. It is submitted that neither the Plaintiff and Defendant no. 1 to 4 were taking rents from any of the property except the rightful owner i.e. Defendants no. 5 & 6, if they were having some arrangements. It is averred that the Defendant no. 5 was the owner of the ground floor and first floor and it is denied that the remaining half portion on the third floor had been in common joint use and occupation of the Plaintiff and Defendant no.2. It is averred that the portion of the second floor was in illegal possession of the Plaintiff. It is stated that the Plaintiff and his wife had no concern with the property in question and hence, they could not claim any right or even object to the repairs being carried out by Defendants no. 5 & 6.
2.4 It is denied in the written statement that the Defendant no.1 was ever carrying out any unauthorized construction in the property in July 2013. It is averred that the Plaintiff was an unauthorized occupant and had not sought any permission from Defendant no. 6. It is stated that the orders in CS 9025/16 Page 11 of 61 Civil Suit No. 530/2013 & 531/2013 showed the good intention of Defendant no.1 and the absolute ownership rights of Defendants no. 5 & 6. It is averred that the Plaintiff had absolutely no right, title or interest in the suit property and that in the garb of the present suit wanted to claim partition for which he had no right. It is denied that the documents were collusive, fraud, null and void. All the averments made in the plaint were denied. It is averred that the amendment in the Hindu Succession Act had no relevance to the case at hand as the Defendant no. 1 was already the absolute owner and none of his legal heirs including son and daughter had any right or interest whatsoever in the property in question. It is stated that the Defendant no. 1 was always the owner of the property and therefore, he had sold the same in his individual capacity to Defendants no. 5 & 6. It is stated that the decree passed by Ld. ADJ-03 in suit no. 530/2013 & 531/2013 superseded everything and Defendants no. 5 & 6 became the absolute owner.
2.5 All the averments in the Plaint were denied in the written statement and it was further stated that the plaintiff had no right of any kind whatsoever in the property so as to even realize his share from the rent out of the suit property. It is stated that the plaintiff was a habitual nuisance creator and because of his employment with Delhi Police harassed Defendant no. 1 and threatened Defendant no. 1, 2, 5 & 6. It is averred that the Plaintiff was in illegal possession of the premises comprising of one room and one kitchen and plaintiff was not entitled to retain the possession thereof and liable to pay damages to Defendant no. 6.
CS 9025/16 Page 12 of 613. Right to file written statement by Defendant no. 3 was closed by Hon'ble High Court of Delhi vide order dated 12.11.2014.
4. In replication to the Written Statement filed on behalf of Defendants no.1, 2, 5 & 6, the Plaintiff denied all the grounds raised in their written statement and stated that the complaints made by the plaintiff and his wife were genuine. It is further averred that the Plaintiff withdrew the suit before Ld. Civil Judge/South, to file the present comprehensive suit. It is averred that Defendant no. 2 was using Defendant no.1 as a shield to his illegal activities to grab the property of the Plaintiff.
5. On completion of pleadings vide order dated 05.12.2014 the following issues were framed:-
1. Whether the Plaintiff is co-parcener/co-owner in possession of property no. F-114, Lado Sarai, Near Kali Mandir, Delhi (part of Khasra no. 176) to the extent of 1/5th share? OPP
2. Whether the documents executed by the defendant no. 1 in favour of defendant no. 2,5 & 6 in relation to suit property are illegal, null and void and the same are liable to be cancelled?OPP
3. Whether the decrees obtained by defendant no. 5 in Suit No. 530/2013 and Suit No. 531/2013 on 06.08.2013 from the Court of Ms. Poonam Choudhary, ADJ-03, Saket Court, New Delhi, are ineffective, null and void?OPP.
4. Whether the Plaintiff is entitled to decree of permanent injunction as prayed?OPP
5. Whether the plaintiff is entitled to decree of rendition of CS 9025/16 Page 13 of 61 accounts directing defendant no. 1, 2 & 5 and 6 to render true and correct account of rent and profit received from suit property w.e.f. 01.07.2013?OPP
6. Whether the present suit is not maintainable in view of the preliminary objections raised by the Defendant?OPD.
7. Whether the suit is bad for mis-joinder or parties? OPD1,2,5 & 6.
8. Relief.
6. At the stage of Plaintiff Evidence, the Plaintiff examined himself as PW-1 and tendered his evidence by way of an affidavit Ex.PW-1/A and relied upon the following documents:-
1. Site Plan of the property: already exhibited as Ex. PW3/A.
2. Revenue extracts of the suit propety bearing no. F-114, Lado Sarai, Near Kali Mandir w.e.f. 1964 are exhibited PW1/1(Objected to by the Ld. Counsel for the defendant on the ground of the mode of proof).
3. Revenue records of suit property bearing no. F-114, Lado Sarai, Near Kali Mandir from 1944: Ex. PW1/2(Running Pages 116,119 and 122(Objected to by the Ld. Counsel for the defendant on the ground of the mode of proof)..
4. Translation of Revenue records of suit property bearing no. F- 114, Lado Sarai, Near Kali Mandir from 1944: Ex.
PW1/3 (114, 115, 117, 118, 120 and 121)(Objected to by the Ld. Counsel for the defendant on the ground of the mode of proof).
5. Driver's Licence is EX. PW1/4(O.S.R.), Voter ID card is EX. PW1/5(O.S.R.) and LPG bill of Mohanil Gas Service is EX. PW1/6 (O.S.R.).
6. Certified copies of the suit for declaration and permanent injunction filed before the court of Ms. Samiskha Gupta, LD. CJ, CS 9025/16 Page 14 of 61 Junior Division, Gurgaon and certified copy of interim order dt. 05.09.2013: already exhibited as EX. PW6-1/1(Colly).
7. Certified copy of order passed in suit for injunction by the court of Ms. Neera Bharihoke, LD. ADJ, EX. PW1/7. The certified copy of the statement given by Sh. Bhagwan Singh in the suit bearing no. 530/2013 filed by Sh. Pradeep before the court of Ms. Poonam Chaudhary, Ld. ADJ, certified copy of the statement given by Sh. Bhagwan Singh in the suit bearing on. 531/2013 filed by Smt. Meenu before the court of Ms. Poonam Chaudhary, Ld. ADJ and certified copy of order dt. 06.08.2013 passed by the court of Ms. Poonam Chaudhary, Ld. ADJ, in CS. No. 530/2013 and CS No. 531/2013 : already exhibited as EX PW5-1/1 (Colly).
8. Certified copy of the suit filed in the District Court, Certified copy of reply to application U/O 39 R1 & 2, certified copy of application for withdrawal and certified copy of order dt. 10.09.2013: already exhibited as PW4-1/1(Colly).
6.1 During his cross-examination conducted by the Ld. Counsel for Defendants no. 1,2, 5 &6, PW-1 stated that he did not know whether in para no. 3 of the affidavit of evidence Ex.PW-1/A, it was stated that the Plaintiff and Defendant no. 1,2 & 4 constituted a joint family property and that the suit property was an ancestral co-parcenary property along with other averments as made were a part of the plaint but added that the relevant documents had been placed on record. He stated that Sh. Kanhaiya Lal had left for heavenly abode in 1976 and denied the suggestion that Kanhaiya Lal had never acquired 19 biswas of land in Khasra no. 176, Lado Sarai in the year 1944. He denied the suggestion that Kanhaiya Lal acquired the aforesaid property CS 9025/16 Page 15 of 61 in the year 1957. He also denied the suggestion that Kanhaiya Lal acquired the aforesaid property from his own funds or that it was the self acquired property of Late Sh. Kanhaiya Lal. He admitted that after the death of Kanhaiya Lal, his sons partitioned the property amongst themselves and that he could not say that since the aforesaid partition, the sons of Late Sh. Kanhaiya Lal were in possession of their respective shares. He stated that Raghuvir Singh left for his heavenly abode in 1992 but denied the suggestion that after the death of Raghuvir Singh, his legal heirs partitioned the property owned by him amongst themselves. He denied the suggestion that he was never the owner of the property acquired by Bhagwan Singh to any extent.
6.2 He admitted that Kishan Chand, Bhagwan Singh and Azad Singh, who are the sons of Late Raghuvir Singh were living in their respective houses and maintaining separate kitchens. He stated that he did not know how to read or write Urdu language and he could not read or decipher the contents of Ex.PW-1/2 which was the revenue record of the suit property from 1944. He admitted that Mr. Pradeep Khatri, had filed a suit seeking his eviction from the portion of the suit property which was in his occupation and further admitted that the portion of the suit property used by him comprised of a room with attached toilet, balcony and a kitchen. He denied the suggestion that the site plan Ex.PW-3/A was not accurate and further admitted that he had not executed any rent agreement with any of the tenants of the suit property and added that there was no rent agreement ever executed between any of the tenants residing at the suit property. He admitted that he had not issued any receipt for any of the tenants residing at the suit property and denied the CS 9025/16 Page 16 of 61 suggestion that prior to the sale of the suit property Mr. Bhagwan Singh used to collect the rents from the tenant.
6.3 During his cross-examination conducted on 07.05.2018, PW-1 stated that Kanhaiya Lal had two brothers, Sita Ram and Chunni Lal and Kanhaiya Lal was an agriculturist. He further stated that he did not know if he had placed on record any document to show that Kanhaiya Lal had purchased the suit property from the joint family funds. He stated that Kanhaiya Lal might have expired in the year 1976. He stated that during his cross-examination as per Ex.PW-1/3, the land bearing no. 685/176 min was mortgaged by one Rizak Ram S/o. Sh. Devi Singh with Kanhiaya S/o. Sh. Bhagmal. He admitted that in the year 1944, the aforesaid land was in possession of Kanhaiya Lal in the capacity of a mortgagee. He denied the suggestion that the Kanhaiya Lal was not the owner of the land upto 1956 and that Kanhaiya Lal became the owner of the aforesaid land w.e.f 20.04.1957. He further denied the suggestion that Plaintiff and Defendants no. 1 to 4 never constituted a joint Hindu family. He denied the suggestion that neither Bhagwan Singh nor his predecessor in interest had acquired any right in the co- parcenary property. He denied the suggestions put forth by Ld. Counsel for Defendant no. 1,2,5 & 6.
7. PW-2 Smt. Bhawna is the Wife of Plaintiff. She tendered her evidence by way of an affidavit Ex.PW-2/A bearing her signature at point A and B. She relied upon the copy of telephone bill installed in her name Ex.PW-2/1(OSR) at the suit property. She also brought the original installation receipt of landline dated 13.02.2012.
CS 9025/16 Page 17 of 617.1 During cross-examination of PW-2 by Ld. Counsel for Defendant no. 1,2,5 & 6, she stated that she did not know anybody from the family of her husband prior to her marriage. She denied the suggestion that her marriage with the Plaintiff was solemnized with the plaintiff against the wishes of her parents. PW-2 also stated that she did not remember in which year she had inspected the revenue record forming part of khasra no. 176, Village Lado Sarai and stated that she had inspected the record with her husband. She admitted that she had not mentioned in her affidavit Ex.PW-2/A that she had inspected the record with her husband. She denied the suggestion that the land was never recorded in the name of the Kanhaiya in the revenue record w.e.f 1944. She further denied the suggestion during her cross-examination that after one year of the marriage at the request of her husband, family of the Plaintiff granted permission to the Plaintiff and her to live in the suit property. She stated that the document Ex.PW-2/1 was a telephone bill for the month of July 2013 and that she had not filed on record any documents which showed that she was residing at the suit property prior to the year 2012. She stated that she was in possession of her portion i.e. one room, toilet, kitchen and balcony located on the left side, second floor of the suit property since the time of her marriage and voluntarily added that the said portion was in her possession along with the rights on the third floor since the date of her marriage.
7.2 During cross-examination of PW-2 conducted on 27.08.2018, she stated that she did not know the year in which Lado Sarai area was taken over by MCD as mentioned in para no. 8 of her affidavit Ex.PW-2/A and she had not placed on CS 9025/16 Page 18 of 61 record notification/document in this regard. She stated that at the time of filing of the present suit, she along with her husband along with Defendants no. 1,2,5 & 6 and the tenants were residing in the suit property. She stated that at the time of institution of suit, the electricity meter on the ground floor of the building were locked inside the boxes and the complaint to BSES for electricity theft was made in August 2013. She denied the suggestion that there was no theft of electricity by Defendant no. 1,2 & 5. She stated that she could not tell if her father-in-law and mother-in-law who were residing in the suit property were permitted for the same by Defendants no. 5 & 6 or they do not have any right to reside in the suit property. She admitted that she had made some complaints against the Defendant Dharmender and Meenu in police station and denied the suggestion that the complaints had been made in order to pressurize the Defendants to bow down to their demands. She denied the suggestion that neither the property at Gurgaon nor the suit property was a co-parcenary property as mentioned in para 13 of affidavit Ex.PW-2/A.
8. PW-3 was Anil Kumar Sharma. He stated that he had prepared the site plan of the suit property and the plaintiff Karamvir Singh approached him and he had visited the suit property along with the Plaintiff and prepared the site plan Ex.PW-3/A. During cross-examination by Ld. Counsel for Defendant no. 1,2,5 & 6, PW-3 stated that he did not know the date when he had visited the site and admitted that there was no date mentioned in the site plan. He stated that he did not CS 9025/16 Page 19 of 61 maintain any record of his visit to different sites for preparation of site plan. He stated that he could not tell if there were other houses with Municipal No. F-114, Lado Sarai, in the same lane other than the house he had visited. He stated that the house on which he had visited was on Bank Street. He denied the suggestion that Ex.PW-3/A did not depict the actual location or structure of site.
9. PW-4 was Amrish Kumar Sah, JJA, Record Room Civil, South District Saket Court. He brought the record of CS No. 201/2013 (Goshwara No. 113/2013) titled as Karamvir Singh Vs. Dharmender and Ors., which was decided on 10.09.2013 by the Court of Civil Judge-02, Saket Court Complex, New Delhi. The certified copy of the suit, reply to application under Order 39 Rule 1 & 2 CPC dated 07.08.2013 along with affidavits, applications dated 10.09.2013 along with affidavit 10.09.2013 and order dated 10.09.2013 were certified copies of the original record and the certified copies of the same Ex.PW-4/1(colly).
During cross-examination by Ld. Counsel for Defendant No. 1, 2, 5 & 6, PW-4 deposed that he did not have any personal knowledge of this case or case bearing CS No. 201/2013 (Goshwara No. 113/2013) titled as Karamvir Singh Vs. Dharmender and Ors and he was deposing on the basis of the record only.
10. PW-5 was Sh. Vipin Kumar, JJA, Record Room Session, South District Saket Court. He brought the record of CS No. 530/2013 (Goshwara No. 3928/C/2013) titled as Pradeep Vs. Sh. Bhagwan Singh, which was decided on 06.08.2013 by CS 9025/16 Page 20 of 61 the Court of Ms. Poonam Choudhary Ld. ADJ-03, Saket Court Complex, New Delhi and CS No. 531/2013 (Goshwara No. 3927/C/2013) titled as Meenu Vs. Bhagwan Singh, which was decided on 06.08.2013 by the Court of Ms. Poonam Choudhary Ld. ADJ-03, Saket Court Complex, New Delhi. He stated that the statement of Bhagwan Singh recorded in CS No. 530/2013 on 06.08.2013 and in CS No. 531/2013 on 06.08.2013 was the certified copies of the original record and the certified copies of the same are Ex.PW-5/1.
During his cross-examination by Ld. Counsel for Defendants No. 1,2,5 & 6, he deposed that he did not have any personal knowledge of this case or case bearing CS No. 530/2013 (Goshwara No. 3928/C/2013) titled as Pradeep Vs. Sh. Bhagwan Singh and CS No. 531/2013 (Goshwara No. 3927/C/2013) titled as Meenu Vs. Bhagwan Singh and he was deposing on the basis of the record only.
11. PW-6 was Sh. Sandeep, Ahlmad in the court of Ms. Mohini, Civil Judge, Junior Division, District and Session Court, Gurgaon, Haryana. He produced the record of CS No. 15348/2013 titled as Karamvir Vs. Dharmender and Ors., the copy of the complaint and order dated 05.09.2013 passed by the court of Sh. Sandeep Yadav, Civil Judge, Junior Division was certified copies of the original records and the certified copies were Ex.PW-6/1(colly).
During cross-examination by Ld. Counsel for Defendants No. 1,2,5& 6, PW-6 stated that he did not have any personal knowledge about the present case or CS No. 15348/2013 titled as Karamvir Vs. Dharmender and Ors. He admitted that the suit bearing CS No. 15348/2013 titled as CS 9025/16 Page 21 of 61 Karamvir Vs. Dharmender and Ors., was dismissed with cost vide judgment dated 08.02.2017 and he did not know whether any appeal was pending against the judgment dated 08.02.2017. He stated that he was deposing on the basis of record only.
12. PW-7 Rajiv Sharma, Kannongo, Office of Sadar, Kannongo Branch, produced the record pertaining to jamabandi for the year 1948-49 for khasra no. 685/176 min village Lado Sarai in four parts, which was Ex.PW-7/1(colly) and the record was in urdu language. He also brought the intekaal bearing no. 593-594 for the year 1944-1945 of village Lado Sarai, which was Ex.PW-7/2 and Ex.PW-7/3(OSR). He stated that the same were in Urdu Language.
During his cross-examination, PW-7 stated that he could not read or write urdu language and he found out the relevant record by getting it read by a person who was conversant in urdu language. He stated that he had not brought the record of the year 1957 as the same was not summoned.
13. PW-8 Sh. Laxman Rao, Translator. He deposed that he was well conversant with Urdu, Hindi and English language and stated that he had carried out the translation of the revenue record which was already Ex.PW-1/1(colly) from Hindi to English and from Urdu to English. He deposed that he also done the translation of Jamabandi for the year 1948-49 for khasra no. 685/176 min, Village Lado Sarai Ex.PW-7/1. He further stated that the translation was done from Urdu to English and he had also done translation of Intekaal bearing no. 593 and 594 for the year 1944-45 of Village Lado Sarai which was Ex.PW-7/2 and Ex.PW-7/3. He stated that the translation was done from Urdu to CS 9025/16 Page 22 of 61 English. He was cross-examined by the counsel for Defendant no. 1,2, 5 & 6 wherein he stated that he had studied Urdu, English and Hindi till higher secondary, while studying at Institute/School Hyderabad, Andhra Pradesh.
14. PW-9 Sh. Ghanshyam Patwari, SDM, Saket. He deposed that he was a summoned witness and had brought the original revenue record of khatoni gaon Lado Sarai, Khata no. 72-83 of the year 2001-2002, the copy of the same was Ex.PW- 9/1(OSR). He stated that as per the entry the name of Raghuvir Singh, Rampal Singh, Ishwar Singh, Karan Singh, Ajit Singh S/o. Kanhaiya are reflected as owner in equal proportion.
PW-9 was cross-examined by the counsel for Defendant no. 1,2, 5 & 6 wherein he admitted that the names of the owners was on the basis of record brought by him and there was no entry showing if any application for mutation of further names had been moved with respect to the present land. He further stated that record pertains to 18 biswas of land .i.e about 900 square yards. He stated that he did not have any personal knowledge of this case.
15. PW-10 was Sh. G.S Meena, Record Keeper, SDM, M.B Road. He brought the original record of year 1964-1965 of Khata no. 6/1-56, 20/1-87, 40/1-7, record of year 1969-1970 of Khata No. 4/4, 19-20/20, 41/40, record of the year 1973-1974 of Khata No. 6/4, 18/19-20, 37/41, all pertains to land situated at Village Lado Sarai. The certified copy of said record is already Ex.PW-1/1(colly).
PW-10 was cross-examined by the counsel for Defendants no. 1,2, 5 & 6 wherein he stated that he could not tell CS 9025/16 Page 23 of 61 whether the aforesaid land was a lal-dora land or an agricultural land. He stated that he had brought the summoned record as he was the record keeper and did not have any personal knowledge of this case.
16. PW-11 was Rakesh Maurya, Office Associate, Enforcement Cell, BSES Andrews Ganj. He brought the documents pertaining to complaint no. 1944 made by the Plaintiff including the original complaint, material receipt, seizure memo, observation report, load report, inspection report and enforcement bill, copy of which Ex.PW-11/1(OSR). He was cross-examined by the counsel for Defendant no. 1,2, 5 & 6 wherein he stated that he had not brought any authority letter issued by any officer in the office of Enforcement Cell, BSES. He denied the suggestion that he was not authorized to give evidence or produce any record. He stated that he did not have any knowledge as to against whom the case was instituted in case of theft of electricity and he could not tell as to how many meters are installed in the premises at the relevant time and in whose name the same was installed. He stated that he could not confirm or deny whether Dharmender Singh was not the user of electricity by direct theft.
17. PW-12 was Dal Chand, Record Keeper, Building Department, South Zone, Green Park New Delhi. He had brought the record i.e Diary register for the period 04.06.2013 to 05.08.2013. He deposed that at serial no. 2430 a complaint dated 08.07.2013 had been moved by Ms. Bhawna, however, copy was not available with the department as same had been sent to concerned JE. Photocopy of the relevant page of diary register CS 9025/16 Page 24 of 61 and copy of receiving of JE is Ex.PW-12/B(colly).
He was cross-examined by the counsel for Defendant no. 1,2, 5 & 6 wherein he stated that he was not aware about the contents of the complaint and could not tell if any survey was conducted on the basis of the said complaint. He stated that he could not tell if any action was taken on the complaint.
18. PW-13 Sh. Sumit Dalal, Assistant Ahlmad in the court of Ms. Anuradha Prasad, Ld. MM-02, Mahila Court, Saket (South). He had brought case file of MC no. 13/18 titled as 'Meenu vs. Karambir Sejwal'. He had compared certified copy of statement of Ms. Meenu dated 19.05.2015 and the same was Ex. PW13/A (OSR). He stated that he had compared copy of certified copy of statement of Smt. Meenu dated 26.04.2016, which was Ex. PW13/B (OSR). He further stated that he had also compared the copy of certified copy of statement of Smt. Meenu dated 05.06.2018, which was Ex. PW13/C (OSR). He further stated that he had compared the copy of certified copy of statement of Smt. Meenu dated 29.05.2019, the same was Ex. PW13/D (OSR) and had also compared the copy of certified copy of statement of Smt. Meenu dated 29.05.2019 (at 12:10 p.m.), the same was Ex. PW13/E (OSR). He further stated that he had compared the copy of certified copy of statement of Smt. Meenu dated 18.09.2019, the same was Ex.PW13/F (OSR) and had compared the copy of certified copy of statement of Smt. Meenu dated 04.12.2019, the same was Ex.PW13/G (OSR). He stated during his cross-examination that the compared copy of certified copy of statement of Smt. Meenu dated 26.02.2020, was now Ex. PW13/H (OSR). During his deposition, he stated that he CS 9025/16 Page 25 of 61 had compared the copy of certified copy of statement of Sh. Dharmender dated 01.07.2015, which was Ex. PW13/I (OSR). He had compared the copy of certified copy of statement of Sh. Dharmender dated 26.04.2016, the same was Ex. PW13/J (OSR). He had compared the copy of certified copy of statement of Sh. Dharmender dated 09.01.2020, the same was Ex.PW13/K (OSR). He had compared the copy of certified copy of statement of Sh. Dharmender dated 14.02.2020, the same was Ex. PW13/L (OSR). He had compared copy of certified copy of statement of Sh. Dharmender dated 26.02.2020, the same was Ex. PW13/M (OSR). He had compared the copy of certified copy of application to SHO, PS Saket, the same was Mark 'X' (which was marked as CW2/D-1 on 14.02.2020 by Ld. MM-02/ Saket).
18.1 PW-13 was further stated that he had brought the file of MC No. 13/18 titled as Meenu Vs. Karamvir Sejwal and had compared the certified copy of statement of Ms. Meenu dated 19.05.2015 which was correct and is Ex.PW-13/A(OSR). He also compared the certified copy of statement of Smt. Meenu dated 26.04.2016, which was correct and is Ex.PW-13/B(OSR). He also compared the certified copy of statement of Smt. Meenu dated 25.06.2018, which was correct and is Ex.PW-13/C(OSR). He also compared the certified copy of statement of Smt. Meenu dated 29.05.2019, which was correct and is Ex.PW-13/D(OSR). He also compared the certified copy of statement of Smt. Meenu dated 25.09.2019 (at 12.10 PM) which was correct and is Ex.PW-13/E(OSR). He also compared the certified copy of statement of Smt. Meenu dated 18.09.2019, which was correct and is Ex.PW-13/F(OSR). He also compared the certified copy of statement of Smt. Meenu dated 04.12.2019, which was correct CS 9025/16 Page 26 of 61 and is Ex.PW-13/G(OSR). He also compared the certified copy of statement of Smt. Meenu dated 26.02.2020, which was correct and is Ex.PW-13/H(OSR). He also compared the certified copy of statement of Dharmender dated 01.07.2015, which was correct and is Ex.PW-13/I(OSR). He also compared the certified copy of statement of Dharmender dated 26.04.2016, which was correct and is Ex.PW-13/J(OSR). He also compared the certified copy of statement of Dharmender dated 09.01.2020 which was correct and is Ex.PW-13/K(OSR). He also compared the certified copy of statement of Dharmender dated 14.02.2020 which was correct and is Ex.PW-13/L (OSR). He also compared the certified copy of statement of Dharmender dated 26.02.2020 which was correct and is Ex.PW-13/M(OSR).
He also compared the certified copy of the complaint to SHO PS Saket, which is marked X. He was not cross-examined by Ld. Counsel for the Defendants.
19. On completion of Plaintiff evidence, the defendants examined the following witnesses in defence evidence:-
20. DW-1 Sh. Bhagwan Singh. He tendered his evidence by way of an affidavit Ex.DW-1/A and relied upon on the following documents:-
1. Revenue record of suit property bearing no. F-114, Lado Sarai, near Kali Mandir of the year 1944 which was already exhibited as Ex.PW-1/2.
2. Translation of Revenue record of suit property bearing no.
F-114, Lado Sarai, near Kali Mandir of the year 1944 which was already exhibited as Ex.PW-1/3.
3. Revenue record of suit property bearing no. F-114, Lado CS 9025/16 Page 27 of 61 Sarai, near Kali Mandir of the year 1944 to 1964 which was already exhibited as DW-1/1.
4. Translation of Revenue record of suit property bearing no. F-114, Lado Sarai, near Kali Mandir of the year 1944 to 1964 which was already exhibited as Ex.DW-1/2.
20.1 He was cross-examined by the Counsel for the Plaintiff, wherein he stated that he stated that he lived in Lado Sarai village House No. F-176, for the last about 40-45 years and the suit property was purchased by his Grandfather Kanhaiya Lal. He further stated that the construction of the suit property was done by him about 30 years and that about 10 years of the building was demolished and again reconstructed. He further stated that as the suit premises was in a village, there was no requirement to take any permission from any authority for constructing the building. He stated that he did not know whether the area in which he was living fell under the jurisdiction of MCD. He stated that when the building was reconstructed after demolishing of the old structure of the suit property, and he got construction on the ground floor shops consisting of first, second and third floor for residential use. He further stated that the amount of reconstruction of the building was spent by him and he also got assistance from two of his staff colleagues of DDA. He stated that he did not show the amount of assistance from his two colleagues to income tax department and further stated that after selling the property in question, he repaid the amount of assistance taken by him from his two colleagues. He further stated that the names of his two colleagues were Om Prakash and Narain Singh and he did not remember the amount of financial assistance received by them.
CS 9025/16 Page 28 of 61He further stated that he did not remember the amount repaid by him and stated that the amount was in lacs of rupees and not in thousand.
20.2 DW1 also during his cross-examination stated that the ground floor of the suit property consisted of shops only and was occupied by Defendant no. 5, who had purchased the same. He further stated that the second and third floor were in possession of Defendant no. 6, who had purchased the said two floors from him. He further stated that he was residing on the third floor of the property along with Defendant no. 2, his elder son. He further stated that Defendant no. 5 also lived with them at the third floor and stated that the plaintiff and his family lived on the second floor of the suit property. He stated that the consideration amount from Defendant no. 5 & 6 was deposited by way of cheques in their bank accounts and the cash receipt was utilized by him partly in repayment of the financial assistance from the two colleagues and the sum of Rs. 10 lacs had been paid to the Plaintiff. DW1 stated that during his cross- examination that he did not obtain any payment from the Plaintiff regarding the payment of Rs.10 lacs and he did not remember the date and month in which he had made the payment of Rs. 10 lacs to the plaintiff. He added however, the same was paid in the Plaintiff's room and he was accompanied by Defendant no. 2 at that time. He stated that he did not remember now how much amount was repaid by him in cash to his two colleagues. He added that he could produce his bank account statement to show the amount received from Defendant no. 5 and Defendant no. 6.
CS 9025/16 Page 29 of 6120.3 DW further stated during his cross-examination that he had sold the suit property at the time of construction and that none of his sons had contributed to the construction despite his requests. He stated that he could not say whether he could show bank accounts with respect to withdrawals or payment by cheques with respect to construction of the property in question. He also stated that he could not confirm the amount sourced by him from his bank account for the construction of the suit property even after checking the same. He further stated that Defendant no.5 was a housewife and he could not tell from where Defendant no. 5 had arranged the funds to pay the sale consideration. He further stated that the Defendant no. 6 was the real brother of Defendant no. 5 and Defendant no. 6 lived in Narela, Delhi. He also stated that he had deposited the cheques of sale consideration received by him in the bank accounts. He further stated that he did not enquire about the market price of the suit property prior to selling it and the sale consideration was fixed by him according to the area of the respective floors. He denied the suggestion that at the time of selling of the suit property, as per the circle rate fixed by the concerned authority, the value of the suit property was approximately Rs. 76 lacs.
20.4 DW1 during his cross-examination stated that at present, none of the portion of the suit property were in his ownership. He further stated that no dispute arose between him and Defendant no. 5 & 6 after the execution of suit property in their names and added that he had voluntarily gone to the court to give statement that he had sold the suit property to them. He stated that he became aware of the two suits as he was called by the court and he had made the statement which was already on CS 9025/16 Page 30 of 61 record. He further stated that he did not have any residence in Noida and he did not know if Defendants no. 5 & 6 had any residence in Noida. He stated that he had to go to Noida for execution of the sale documents in favour of Defendants no. 5 & 6 as at the relevant time the said documents could not be executed in Delhi. He stated during his cross-examination that he could not tell who had informed him that the said documents could not be executed in Delhi and further stated that the documents were prepared by him in Mehrauli and Noida. He stated that at the time of execution of the document he had informed Defendants no. 5 & 6, that the plaintiff had also resided in the suit property and that he had not handed over the possession to Defendant no. 6 at the time of execution of these documents and also added voluntarily that he paid the Plaintiff Rs.10 lacs who had promised to vacate the suit property. He further stated that after receiving the sale consideration from Defendant no. 5, he handed over the sale consideration of the ground floor and the first floor and admitted that at that time the ground floor and the first floor were occupied by the tenants.
20.5 DW1 further stated during his cross-examination that the when the sale documents were prepared by him, he did not specify that the ground floor and first floor were occupied by the tenants. He stated that there was no tenant on the second floor and third floor of the suit property. He stated that he did not know the meaning of ancestral property and denied the suggestion that the suit property is an ancestral property or that he was not competent to sell it and added that it was his property. He admitted that he had property in Gurgaon and the said property was also purchased by his grandfather.
CS 9025/16 Page 31 of 6120.6 During his cross-examination conducted on 18.02.2020, DW1 denied the suggestion that his family members used to distribute the rent in question. He further denied the suggestion that the upto three months before, the portion on the second floor of the property was occupied by the tenant. He stated that he had no concern with the rent and his expenses were taken care by his pension. He admitted that he had been living in Lado Sarai village prior to his birth and prior to the construction made in the property in question, he used to reside in Lado Sarai in another house and the said other house was earlier owned by Mr. Kanhaiya and now it was owned by Mr. Ajit Singh, who was his Uncle and son of Kanhaiya. He further stated that the house tax, electricity and water supply bills were in his name. He stated that he could produce the house tax receipt of the property in question in his name and denied the suggestion that the title of the suit property was not in his name because it was an ancestral property. He added that it was inherited from his father and further stated that he suit property was not registered in the name of his father as on today in the revenue record.
20.7 DW1 stated that he could not produce any document to show that the suit property was not in the name of his father in the revenue record and admitted that his father had inherited the suit property after the death of Mr.Kanhaiya. He stated that Kanhaiya had acquired this property as some other persons of village mortgaged it with Kanhaiya before this birth. He stated that in the year 1957 Kanhaiya became the owner of the suit property and denied the suggestion that the Kanhaiya became the owner much prior to 1957, as per the terms of the CS 9025/16 Page 32 of 61 sale deed. He stated that the mortgaged money regarding the mortgage deed executed in favour of Kanhaiya might have been given by Kanhaiya and denied the suggestion that Kanhaiya gave this money out of the sale consideration of the ancestral property. He stated that in addition to the suit property, he also inherited one property in Gurgaon from his father.
20.8 DW-1 stated that he had wrongly mentioned the suit property as dada-lahi property in Ex.DW-1/P1 and Ex.DW-1/P2 and he came to know about this wrongly mentioned fact afterwards and could not give the month, date and year. He stated that at present, he did not own any property and whatever properties he had, he had transferred them to Defendants no. 2,5 & 6 vide respective documents. He admitted that the certified copy of the statement given in Gurgaon Court was Ex.DW-1/P3 and denied the suggestion that at the time of filing of the present suit the plaintiff was using the common portion of third floor of the suit property. He stated that after executing transfer document in favour of Defendants no. 5 & 6 he had not given any money to Defendant no. 2 and he was living with his elder son on the fourth floor of the suit property even after executing transfer documents and that Defendant no. 2 could tell at which capacity he was living there.
20.9 DW-1 also stated during his cross-examination that Defendant no. 6 Pradeep or any of his family members had never reside in the suit property and he voluntarily added that Defendant no. 6 often visited the suit property. He stated that the oral family settlement mentioned in para no. 2 of his affidavit has not been recorded in writing anywhere and the oral CS 9025/16 Page 33 of 61 settlement did not take place in his presence and his late father knew about it. He stated that his two uncles were present at the time of oral settlement were alive and further stated that he did not mention his uncles as witnesses in this case. He stated that he did not remember when he last made construction in the suit property and the undertaking as mentioned in para no. 4 & 5 in his affidavit was given by him with consent of Defendants no. 5 & 6.
20.10 During his cross-examination conducted on 04.03.2020, DW1 had brought with him his bank statement w.e.f 01.05.2013 to 31.07.2013 for his bank account in Central Bank of India, Lado Sarai, New Delhi and the same was Ex.DW-1/P5. He also brought the passbook issued by Post Office in respect of his post office account, the copy of which Ex.DW-1/P6 (5 pages). He stated that he did not remember as to whom he had transferred payment of Rs. 5 lacs each vide transactions dated 21.05.2013 and 27.05.2013 in Ex.DW-1/P5. He stated that cash withdrawn by him from his bank account had been utilized by him for repayment of his liabilities. He admitted that he had got the bank statement only till 31.07.2013 and not for the entire year of 2013. He stated that he did not remember if after knowing the meaning of dadalahi (ancestral), he had amended the documents in which he had mentioned the property at Gurgaon and the suit property as ancestral. DW1 stated that he did not remember that after execution of the documents in favour of Defendant no. 5 Meenu on 20.05.2013 and on defendant no .6 on 17.05.2013 or in defendant no. 2 on 09.05.2013 and on 14.06.2013, he had further executed documents in their favour.
CS 9025/16 Page 34 of 6121. DW-2 was dropped from list of defence witnesses as per proceedings dated 04.03.2020.
22. DW-3 was Sh. Laxman Rao, Translator. He brought the translated document Ex.DW-1/1 (4 pages) from Urdu to Hindi language, the translated copy of the same already Ex.DW- 1/2(4pages). He stated that he had translated the same on the basis of the photocopy Ex.DW-1/1, handed over to him which are Ex.DW-3/1(2pages) bearing his signature at pointA on each pages. He stated that the translation done by him was true and correct.
During his cross-examination by Ld. Counsel for Plaintiff, DW3 stated that he did not have any certificate to show that he was authorized to do translation and denied the suggestion that he had not studied Hindi and that the translation done by him of Ex.DW-1/1 was not proper.
23. DW-4 Sh. Ombir, Office, Kanungo/Field Inspector. He had brought the summoned record .ie. LR-4 for Village Lado Sarai in respect of Land Bearing Khasra no. 685/176 min etc., khata no. 5,6,7,8,9,10 & 11. The photocopy of the same was Ex.DW-4/1(OSR).
During his cross-examination by Ld. Counsel for Plaintiff, DW4 stated that he was not aware about the contents of Ex.DW-4/1 as he cannot understand Urdu. He further stated that the officials in his office who understands Urdu had flagged the record produced by him.
24. On completion of Defence Evidence, final arguments were heard as advanced on behalf of both the parties.
CS 9025/16 Page 35 of 61The record has been carefully perused and considered.
25. Ld. Counsel for Plaintiff argued that the dispute between the parties was with respect to property bearing no. F- 114, Lado Sarai, Near Kali Mandir, New Delhi measuring 100 square yards comprising in Khasra no. 176 and the plaintiff along with defendant no. 1 to 4 constituted a joint Hindu family. It was argued that the suit property was an ancestral and co- parcenary property. It was also argued that the as per the revenue record of 1964-65, the land was recorded in the name of Kanhaiya, the late great grandfather of the plaintiff and after the death of the Kanhaiya the names of his five sons were mutated on the revenue record and that the plaintiff and Defendant no. 1 to 4 were co-owners to the extent of 1/5th share each in the aforesaid ancestral co-parcenary property which was in joint possession thereof. It is argued that the Defendants no. 1,2, 5 &6 in collusion with each other had created false and fictitious document of the suit property showing sale of ground and first floor in the favour of Defendant no. 5 (wife of Defendant no. 2) by Defendant no. 1 and the sale of second floor and third floor in Defendant no. 6 (brother-in-law of Defendant no. 2) by Defendant no. 1. It was also argued on behalf of the Plaintiff that the aforesaid documents were registered at Noida, even though the suit property was located in Delhi and to give it legitimacy Defendants no. 5 & 6, filed two collusive suit each for specific performance, permanent damages against Defendant no. 1 on 05.01.2013 which were listed before Ld. ADJ-03 on 06.08.2013. It was urged that on the first date itself Defendant no. 1 appeared before this court and the matter was compromised, wherein Defendant no. 1 gave a statement that he would execute sale CS 9025/16 Page 36 of 61 deeds in favour of Defendant no. 5 & 6 in respect of their portion thereof respectively. It is further argued that the Defendants had failed to bring on record any specific date of partition and had failed to prove that the suit property had ever been partitioned since the demise of Sh. Kanhaiya Lal. It is averred that the Defendant no. 1 had acquired the property from his forefathers and it was clear that the suit property was an ancestral property of which Plaintiff was a co-parcener and entitled to 1/5th share. It was further submitted that the chain of documents executed in favour of Defendants no. 5 &6 including GPA, agreement to sell, Will etc., did not confer any right, title or interest in the suit property and were insufficiently stamped and registered in Noida even though the parties were residing in Lado Sarai. It is argued that the decree dated 06.08.2013 was liable to be set aside and declared null and void since the aforesaid suits being proved as collusive during trial. It is prayed that the suit be decreed in favour of the Plaintiff.
26. Per contra, it has been argued on behalf of Ld. Counsel for Defendants no. 1,2,5 & 6 that if a person after 1956 inherits a property from its paternal ancestors, the property was not a HUF property in his hands and was taken to be the self acquired property of the person who inherited the same. He further argued that the property could not be treated as an ancestral property as at the time of passing of Hindu Succession Act, 1956, it remained the self acquired property of Kanhaiya, who died in 1976. It is further argued that the Plaintiff had failed to proved the existence of HUF or the joint family property prior to 1956 or that the suit property was an ancestral property. It is averred that as per record, Kanhaiya became the bhoomidar/ CS 9025/16 Page 37 of 61 owner of the suit property on 20.04.1957. It was further argued that the absence of the mutation in revenue record did not negate the factum of partition. It was argued that the averments made in the plaint itself revealed that there was a partition amongst the legal heirs of Kanhaiya as well as legal heirs of Raghuvir Singh. It was also argued on behalf of Defendants that it is the case of the Defendants that Defendant No. 1 got this property as a result of partition in terms of oral settlement of property owned by his father and that mere mentioning of property as ancestral in the document executed by Defendant no. 1 did not change the legal status of the property. It was further argued that though the Plaintiff had contended that the suit filed by the Defendant no. 5 & 6 were collusive with Defendant no. 2, the Plaintiff had failed to prove on record any dishonest purpose and vide decrees dated 06.08.2012. Defendants no. 5 & 6 only obtained undertaking of defendant no. 1 to execute document in his favour. It was also argued that there were various contradiction in the case of the Plaintiff and the Plaintiff had failed to prove this case and the suit of the Plaintiff deserves dismissal.
27. My issue wise findings are as under:-
28. Issue No. 7- Whether the suit is bad for mis-joinder or parties ? OPD1,2,5.
The onus to prove this issue was on the Defendants no. 1, 2 & 5.
28.1 It has been contended on behalf of the Defendants that the present suit was bad for mis joinder of necessary party as Defendant No 1 has already sold the suit property to Defendants CS 9025/16 Page 38 of 61 No 5 and 6. Per contra, it is the claim of the Plaintiff that since the suit property was an ancestral property, he was entitled to a declaration being co-owner and co-parcener to the extent of 1/5th share. It is significant to mention that the plaintiff in para 2 of the plaint has provided the pedigree table wherein it has been shown that Kanhaiya Lal, who was the great grandfather of the Plaintiff had acquired 9 biswas of land in khasra no. 176, Lado Sarai, Delhi in the year 1944 through a mortgage deed.
The Pedigree table of the Legal Heirs of the Kanhaiya Lal as relied upon by the Plaintiff and not disputed by the Defendants is reproduced below:-
Kanhaiya Lal Rajpal Ishwar Raghbir Singh Ajit Singh Karam Singh Kishan Chand Bhagwan Singh Azad Singh Karamvir Dharmender Kanta Nirmala CS 9025/16 Page 39 of 61 28.2 It is pertinent to mention that it has been averred in para 3 of the plaint that as per the revenue record, the land was recorded in the name of Sh. Kanhaiya and after his death, the names of his five sons namely Sh. Raghubir Singh, Rajpal Singh, Ishwar Singh, Karam Singh and Ajit Singh were mutated in the revenue record. It is further averred in the same para that the property bearing no. F-114, Lado Sarai, near Kali Mandir was with the branch of Defendant no. 1 which was admeasuring about 100 square feet and that it is the joint Hindu family of Plaintiff and defendant no. 1, 2 & 4. The Defendants no. 1,2, 5 & 6 on the other hand, have contended that since Defendant no. 1 had sold the suit property to Defendant no. 5 & 6 which was in the knowledge of the plaintiff, the suit was bad for misjoinder of the necessary party.
28.3 In this context, it requires mentioning that during trial, PW-1 at the time of his cross-examination by Ld. Counsel for Defendants no.1,2,5 & 6 stated that Kanhaiya Lal left for heavenly abode in 1976. The Plaintiff as PW1 also admitted that the sons of Kanhaiya partitioned the property of Kanhaiya Lal amongst themselves. He, however, further stated during his cross-examination that since the aforementioned partition, the sons of late Sh. Kanhaiya were in possession of their respective shares and he denied the suggestion that after the death of Raghubir Singh, (who is the grandfather of the Plaintiff and father of Defendant no. 1) his legal heirs had partitioned the suit property amongst themselves. He further denied the suggestion that the suit property was received by Sh. Bhagwan Singh as a result of the partition between the legal heirs of Late Sh.
Raghubir Singh and the same was a self acquired property. It is CS 9025/16 Page 40 of 61 further significant to mention that during his cross-examination on 17.05.2018. PW-1 (the Plaintiff herein) stated that he had heard from his father that the suit property was purchased by Kanhaiya from the joint family funds. Plaintiff further admitted that during the year 1994, the aforementioned land was in possession of Kanhaiya in the capacity of a mortgagee.
28.4 At this stage, it is further vital to mention that PW-7 Rajeev Sharma, who is the Kanoongo, brought the record for jamabandi for the year 1948-1949 Ex.PW-7/1(OSR) as well as the intekaal bearing no. 593-594 for the year 1944-45 of village Lado Sarai which was Ex.PW-7/2 and Ex.PW-7/3. Additionally, PW-9 who was the Patwari, SDM, brought the original record of khatoni, village Lado Sarai for the year 2001-2002, which was Ex.PW-9/1 (OSR) and as per the entry the names of Raghubir Singh, Rampal Singh, Ajit Singh, Ishwar Singh, Karam Singh, who were sons of Kanhaiya were reflected as owners. It is necessary to note that this witness during his cross-examination by Ld. Counsel for Defendants no.1,2,5 & 6 stated that there was no entry showing any application for mutation for further names had been moved with respect to the present land.
28.5 Additionally, it is the case of the Defendants in the present matter that suit property devolved upon Defendant no.1 upon partition and had also been mutated in the name of the father of Defendant no.1 namely Raghubir Singh.
28.6. Therefore, in view of the aforesaid facts and discussions, since it has been brought on record during trial, that the suit property was still in the names of Raghubir Singh, CS 9025/16 Page 41 of 61 Rampal Singh, Ajit Singh, Ishwar Singh, Karam Singh in the revenue records and in addition to the same and on considering that the plaintiff himself during his cross-examination as PW-1 has denied the suggestion that the suit property was received by Sh. Bhagwan Singh as a result of the partition between the legal heirs of Late Sh. Raghubir Singh and that the same was a self acquired property, in the considered opinion of this court, the other sons of Kanhaiya and their legal heirs were a necessary party to the present suit, whose presence was required to fully and finally adjudicate the present dispute. Though, the Plaintiff has claimed oral partition and had agitated that the suit property belonged to the tranche of the family of Defendant no. 1 herein, there is nothing on record to establish that the suit property in question had devolved upon Defendant no. 1, on the basis of any oral partition and neither has any proof or evidence of oral partition been brought forth by any of the parties during the entire trial.
28.7 It would be also pertinent to note that the pleadings in the present suit are silent as to any partition between the legal heirs of Kanhiya Lal, the year of partition if any, and how the rights in the suit property came to be devolved upon Defendant No1 as against the other legal heirs, qua whom the Plaintiff herein is seeking declaration.
Reliance at this stage is also placed on the judgment of Hon'ble High Court of Karnataka titled as Surekha W/o. Ashok Itekar vs. Maruti Krishna Itekari in R.S.A No. 6148/2012 wherein it has been observed that;
"All persons having a share are necessary parties in a suit for partition. There cannot be an effective decree in the absence of necessary parties. There can be a CS 9025/16 Page 42 of 61 decree in the absence of proper parties, since proper parties only throw a light on the dispute. In Kenchegowda Vs. Siddegowda reported in 1994(4) SCC 294 Hon'ble Apex Court has specifically held that in a suit for partition among the members of joint hindu family, co- sharers must necessarily be impleaded. In the absence of such co- shares suit is not maintainable."
28.8. Consequently, in the considered opinion of this court, the present suit for partition is bad for non-joinder of necessary parties because all the other co-sharers/legal heirs are necessary part to the present suit which he is seeking declaration as being co-owners and legal heir upto 1/5th share, but have not been impleaded.
28.9 Accordingly, in view of the aforesaid facts and circumstances, the suit of the plaintiff is bad for non joinder of the necessary party as it was necessary for the plaintiff to implead other legal heirs in the present case as there is nothing on record to even prima facie shows that this suit property had devolved upon the family of Defendant no. 1 Bhagwan Singh upon oral partition, if any. This issue is accordingly, decided against the Plaintiff.
29. Issue No. 1 and issue No. 5 are decided together.
Issue No. -1 - Whether the Plaintiff is co-
parcener/co-owner in possession of property no. F-114, Lado Sarai, Near Kali Mandir, Delhi (part of Khasra no. 176) to the extent of 1/5th share? OPP Issue No. 5- Whether the plaintiff is entitled to decree of rendition of accounts directing defendant no. 1, 2 & 5 and 6 to render true and correct account of rent and profit CS 9025/16 Page 43 of 61 received from suit property w.e.f. 01.07.2013?OPP The onus to prove these issues was on the Plaintiff. 29.1 Before adverting to the factual matrix of the case, it is pertinent to mention that it is a settled principle of law that there can be a joint family without a property. However, there is no presumption as to joint family property. The burden of proof lies upon the person who asserts that a particular property is a joint family or self-acquired property.
29.2. In the present case, there is no dispute with regard to relationship between the parties. It is the contention of the plaintiff that the suit property was the ancestral and joint family property. It is an admitted fact that Defendant no. 1 is the father of the Plaintiff and Defendant no. 2 is his elder brother. It is further admitted that the Defendants no. 3 & 4 are the sisters of the Plaintiff and Defendant no. 2. The Plaintiff, by way of the present suit is seeking declaration that he is a co-parcener and co owner in possession of the suit property .i.e Property no. F-114, Lado Sarai, Near Kali Mandir, Delhi (part of the khasra no. 176) to the extent of 1/5th Share. It is also the case of the plaintiff that the suit property was an ancestral property which was acquired by his great grandfather, Kanhaiya Lal in the year 1944 through a mortgage deed, which had been executed by Razak Ram in favour of Kanhaiya Lal. It is further the case of the plaintiff that after the death of the Kanhaiya Lal, the suit property was mutated in the name of his five sons namely Raghubir Singh, Rajpal Singh, Ishwar Singh, Karam Singh and Ajeet Singh which was reflected in the original revenue record Ex.PW-9/1.
CS 9025/16 Page 44 of 6129.3. On the contrary, the Defendants have contended that the Plaintiff had not been able to prove that the suit property was a co-parcanery property or a joint Hindu property. It is urged on behalf of the Defendants that if a person inherits property from his paternal ancestors, the property is not a HUF property but is taken to be a self acquired property of the person who inherits the same. It has further contended that Late Sh. Kanhaiya Lal became the bhumidar of the suit property on 20.04.1957 as per the revenue record of 1944-1964 Ex.DW-1/1 and the suit property therefore could not be treated as an ancestral property and it became the self acquired of Late Sh. Kanhaiya Lal. It is urged on behalf of the Defendants that the Plaintiff could not prove during trial that the suit property had been partitioned.
29.4 At this stage, it is significant to mention that the entire fulcrum of the present suit as urged on behalf of the Plaintiff is that the Plaintiff has claimed the suit property to be an ancestral property which was thrown into a common hotchpotch and therefore the plaintiff was a co-parcener and co- owner of his 1/5th share. In this context, it requires mentioning that it has come on record during trial that khasra no. 176 in which the suit property is situated and built is admittedly not limited to 100 square yards, which is the area of the suit property. The suit property is a part of Khasra no. 176 which was in whole mortgaged to Kanhaiya Lal in the year 1944 by Razak Ram. Without going into the question as to how Kanhaiya Lal became the owner after expiry of mortgaged deed, even if it is presumed that the Kanhaiya acquired the same (as per DW1/1 Kanhiya Lal became the recorded bhumidar in 1964-65), in the CS 9025/16 Page 45 of 61 considered opinion of this court, the factum of oral partition and property being thrown into common hotch potch as pleaded qua the suit property of the Khasra no. 176 has not been proved or established during trial by the Plaintiff. Careful and meaningful reading of the entire plaint reflects that the same is silent as to many essential and vital details such as date of oral partition, share of each son of Kanhiya Lal, devolution of property further amongst the legal heirs etc. In fact, although it is also come on record during trial that Late Sh. Kanhaiya Lal was survived by five sons, whose names are still reflecting in the revenue record Ex.PW-9/1 on mutation. Additionally, nothing has been brought on record during trial that the father of the Plaintiff had acquired the property in question as ancestral property to the exclusion of the other descendants of the Late Sh. Kanhaiya Lal as urged. As already observed earlier, the other necessary parties, who are the legal heirs/descendants of the five sons of Late Sh. Kanhaiya Lal have not been impleaded despite being necessary for adjudication of the present suit properly and finally. In order to adjudicate the claim raised by the Plaintiff, it is incumbent on the court to give a finding as to the right of these other descendants of Late Sh. Kanhaiya Lal with respect to the suit property, which is not possible in absence of the said descendants being impleaded as a party to this suit.
29.5 Further, it is significant to mention that though, PW- 1 during his cross-examination dated 05.01.2018 has admitted that after the death of Kanhaiya, his sons partitioned the property amongst themselves, no proof qua the same has been placed on record during the trial. The Plaintiff has argued in his Written Submissions that two of the five sons of the Late Kanhaiya Lal CS 9025/16 Page 46 of 61 namely Sh. Ajit and Sh. Karam Singh who are alive have not been produced by the Defendants to prove that the property was partitioned. In view of this court, it was imperative for the Plaintiff first to implead the said alive sons and other legal heirs of the late Kanhaiya Lal and then to establish that his father, the Defendant no. 1 had inherited that property as an ancestral property. The claim of the Plaintiff that it was for the Defendants to prove this fact is not as per the tenets of the Evidence Act as it is well established that one who asserts the claim has to prove it. It is also an established position of law that the onus of proving a fact is on the party which loses if the same is not proved. The plaintiff therefore, was required to establish by leading cogent evidence that his father had inherited the suit property as an ancestral property making the plaintiff a co-parcener qua the same. It is also a trite position of law that Plaintiff has to stand on his own legs and not on the legs of others. He has to prove his own case by adducing oral or documentary evidence and proving the same. Reliance is placed on the judgment of Harish Mansukhani Vs. Ashok Jain 2009 II(AD)(Del) 30 in this regard.
29.6 Be that as it may, even if the argument lead on behalf of plaintiff is considered that there is a presumption that every Hindu family is a joint family and that the members of such family are living in a state of jointness unless contrary is proved wherein reliance on the decision titled Jaganath Misra and Ors. Vs. Lokanath Misra and Ors., AIR 1981 Ori. 52., it is significant to note that in the instant case, the presumption of the jointness of the Hindu family would apply since the date of acquisition of the property by the legal heirs of the Late CS 9025/16 Page 47 of 61 Kanhaiya Lal. It was for the Plaintiff to show that there was a partition amongst the said legal heirs of Kanhaiya Lal and his father had inherited the suit property to the exclusion of the other legal heirs. As already reiterated above, the details of when the properties of Kanhaiya Lal were thrown into common hotchpotch or if there was any oral partition qua the properties of Kanhaiya Lal amongst his legal heirs have not been established during trial. The Plaintiff has not brought any material to explain during trial that the other legal heirs except the descendants of the Defendant were not entitled to a share in the suit property being the common descendants of late Kanhaiya Lal since the entire pleadings are silent to this effect.
29.7. At this juncture, reliance is also placed on the judgment of Shri Ravinder Singh V. Shri Balwinder Singh, 2016 (5) AD (Delhi) 194, it has been held that;
"I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a CS 9025/16 Page 48 of 61 sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties.
10.A reference to the plaint in the present case shows that it is claimed that ownership of properties by late Sh. Jage Ram in his name was as joint Hindu family properties. Such a bald averment in itself cannot create an HUF unless it was pleaded that late Sh. Jage Ram inherited the properties from his paternal ancestors prior to 1956 or that late Sh. Jage Ram created an HUF by throwing his own properties into a common hotchpotch. These essential averments are completely missing in the plaint and therefore making a casual statement of existence of an HUF does not mean the necessary factual cause of action, as required in law, is pleaded in the plaint of existence of an HUF and of its properties.
11. I may note that the requirement of pleading in a clear cut manner as to how the HUF and its properties exist i.e. whether because of pre 1956 position or because of the post 1956 position on account of throwing of properties into a common hotchpotch, needs to be now mentioned especially after passing of the Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as `the Benami Act') and which Act states that property in the name of an individual has to be taken as owned by that individual and no claim to such property is maintainable as per Section 4(1) of the Benami Act on the ground that monies have come from the person who claims right in the property though title deeds of the property are not in the name of such person. An exception is created with respect to provision of Section 4 of the Benami Act by its sub-Section (3) which allows existence of the concept of HUF. Once existence of the concept of HUF is an exception to the main provision contained in sub-Sections (1) and (2) of Section 4 of the Benami Act, then, to take the case outside sub- Sections (1) and (2) of Section 4 of the Benami Act it has to be specifically pleaded as to how and in what manner an HUF and each specific property claimed CS 9025/16 Page 49 of 61 as being an HUF property has come into existence as an HUF property. If such specific facts are not pleaded, this Court in fact would be negating the mandate of the language contained in sub-Sections (1) and (2) of Section 4 of the Benami Act.
12. This Court is flooded with litigations where only self-serving averments are made in the plaint of existence of HUF and a person being a coparcener without in any manner pleading therein the requisite legally required factual details as to how HUF came into existence. It is a sine qua non that pleadings must contain all the requisite factual ingredients of a cause of action, and once the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) come in, the pre 1956 position and the post 1956 position has to be made clear, and also as to how HUF and its properties came into existence whether before 1956 or after 1956. It is no longer enough to simply state in the plaint after passing of the Hindu Succession Act 1956, that there is a joint Hindu family or an HUF and a person is a coparcener in such an HUF/joint Hindu family for such person to claim rights in the properties as a coparcener unless the entire factual details of the cause of action of an HUF and each property as an HUF is pleaded."
29.8 Reliance is further placed on the judgment of Hon'ble High Court of Delhi titled as Sher Singh Vs. Government of NCT and Ors., in RFA No. 601/2007 decided on 10.02.2012, wherein the Hon'ble High Court of Delhi held that ;-
"Merely because a property is an ancestral property, it would not mean that the male heirs of the person who has inherited ancestral property will automatically have right in such property after passing of the Hindu Succession Act, 1956, in view of the judgment of Hon'ble Apex Court in Commissioner of Wealth Tax, Kanpur etc., Vs. Chander Sen AIR 1986 SC 1753 and in Yudhishter Vs. Ashok Kumar AIR 1987 SC 558, it is no longer res-integra that a Hindu male received in his hand the paternal ancestral property as a self acquired property".CS 9025/16 Page 50 of 61
29.9 In view of the ratios, in law ancestral property can only become an HUF property if inheritance is before 1956 and such HUF property therefore which came into existence before 1956 continues as such even after 1956 i.e., after passing of the Hindu Succession Act. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/ HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in HUF properties.
29.10 In the present case, appropriate guided by the aforesaid judgments, it is seen that there is absolutely no credible evidence on record to show that whether after 1956 the suit property continued to be an ancestral property or that any oral partition had taken place between the parties after the death of Late Sh. Kanhaiya Lal as alleged qua khasra no. 176.
29.11 Furthermore, since the pleadings of the present suit are silent as to how the suit property was a joint family property or an ancestral property as is the claim of the plaintiff and further since, there are also no pleadings as to how the suit property devolved on the branch of the family of Defendant No1, who is the father of the plaintiff, no right would accrue to the plaintiff when the father is still alive.
29.12 It is also significant to mention that during the course of arguments, both the parties have submitted that with respect to another property located in Village Chouma, Tehsil and District Gurgaon, which was also owned by Late Kanhaiya CS 9025/16 Page 51 of 61 Lal, the court of the Ld. ADJ, Gurugram has upheld that the said property was an ancestral property wherein the Plaintiff herein had a right as a co-parcener. In view of this court, the said submission is not helpful to the plaintiff as the decision of the said suit by the Courts in Gurugram was given in specific facts of that case and with respect to a different piece of land not connected to the suit property, subject matter herein.
29.13 In the present case, the only cause of action pleaded by the Plaintiff is that the Plaintiff claims co-ownership to the properties of his great grandfather Kanhaiya Lal which are said to be ancestral properties, which has devolved upon Bhagwan Singh (Defendant no. 1), the Plaintiff cannot have any legal right to the properties which are inherited by sons of Kanhaiya Lal, (two of whom are still alive) as they inherited the properties after 1956 as their self acquired properties and not as ancestral or HUF in their hands for the Plaintiff to claim any share in such properties. There is nothing on record in the entire pleadings of the Plaintiff which suggests that the suit property was an ancestral property and the Plaintiff has merely relied upon the revenue record of the year 1965 to discharge the onus that the suit property was an ancestral property, wherein he had a share thereof.
29.14 It is further relevant to note that the Plaintiff is also seeking rendition of account qua the rent received from tenants on some portion of the suit property which in the considered opinion of this court, would amount to also seeking the relief of partition by way of the present suit and for settling of accounts between the parties inter-se each other. The said relief is also not CS 9025/16 Page 52 of 61 maintainable in view of the aforesaid observations. Therefore, in view of the aforesaid facts and circumstances adumbrated above, from the touchstone , the scheme of facts which emerges is that the plaintiffs have failed to discharge the onus and to prove these issues. In fact, the plaintiff has himself contradicted his stances at many instances, wherein on one hand, he is pleading that the suit property belonged to his forefathers and is the ancestral property but by way of the present suit he is claiming 1/5 th share on the averment that the suit property was acquired by the family tree of Bhagwan Singh .i.e Defendant no. 1 (his father). If the claim of the plaintiff that his father had acquired the suit property in furtherance of the oral partition is accepted, then the inheritance of the suit property would be as per Section 8 of the Hindu Succession Act, 1956.
Accordingly, theses issues are decided against the Plaintiff.
30. Issue No. -2 and Issue No. 3 are decided together being interconnected.
Issue No. 2- Whether the documents executed by the defendant no. 1 in favour of defendant no. 2, 5 & 6 in relation to suit property are illegal, null and void and the same are liable to be cancelled?OPP Issue No. 3- Whether the decrees obtained by defendant no. 5 in Suit No. 530/2013 and Suit No. 531/2013 on 06.08.2013 from the Court of Ms. Poonam Choudhary, ADJ-03, Saket Court, New Delhi, are ineffective, null and void?OPP.
The onus to prove these issues was on the Plaintiff.
CS 9025/16 Page 53 of 6130.1 It is the claim of the Plaintiff that the decrees obtained by defendant no. 5 in Suit No. 530/2013 and Suit No. 531/2013 on 06.08.2013 from the Court of Ms. Poonam Choudhary, ADJ-03, Saket Court, New Delhi, are ineffective, null and void as there was collusion between Defendant no. 1 and Defendants no. 5 & 6. It is also the case of the Plaintiff that Defendants no. 5 & 6 were in collusion with Defendants no. 1 & 2 and it is further averred that suit no. 530/2013 and suit no. 531/2013 filed by Defendants no. 5 & 6 were also collusive suits with Defendant no. 1 and were therefore liable to be set aside. It is further averred that the documents executed by Defendant no. 1 in favour of Defendants no. 5 & 6 were also entitled to be declared null and void. It has been agitated on behalf of the Plaintiff that the Defendant no. 1 did not have any title in the property or any other locus to have parted with the same or to have transferred the property. It is averred that the suit property was a part of khasra no. 176 and the whole of the property including the suit property had been in possession of all the legal heirs of Late Kanhaiya Lal, which now stood mutated in the five sons of Kanhaiya Lal but was not partitioned. It is averred that the Defendant no. 1 had neither pleaded partition nor shown how the suit property has became his property. It is further urged on behalf of the Plaintiff that documents executed by Defendant no. 1 in favour of defendant no. 5 & 6 including Will, GPA, Will etc., did not confer any right or transfer any title to the Defendants no. 5 & 6. It is averred that that though the suit property was located in Lado Sarai, the documents have been insufficiently stamped and were registered in Noida by the Defendants and even the sale consideration was less though the valuation of property was more that Rs. 35 lakhs. It is further CS 9025/16 Page 54 of 61 averred that in the Will dated 20.05.2013,it has been specifically mentioned that the suit property was an ancestral property, however, no original documents have been placed on record. It is further averred that though the possession letter had been issued by Defendant no. 1 in favour of Defendants no. 5 & 6, the Defendant no. 1 along with his wife continued to be in possession and were residing on the third floor. It is averred that while staying in the same property Defendant no. 5, who is the daughter-in-law of Defendant no. 1 filed a case seeking specific performance of the Agreement to Sell against Defendant No. 1 and Defendant no.1 on appearing before the Courts, admitted that there was no dispute and agreed to transfer the suit property in the name of Defendants no.5 & 6 respectively. It is averred that Defendant no.1 had given the statement that he had executed the sale deeds before the court in favour of Defendants no. 5 & 6, only Agreement to Sell, GPA, Will was executed which shows that there was a collusive suit and accordingly the documents executed by Defendant no.1 in favour of Defendants no.5 & 6 were liable to be set aside. It is also averred on behalf of Plaintiff that Defendant no.5 had failed to show how she could arrange the sale consideration.
30.2 Per contra, it has been agitated on behalf of the Defendants that the Registration of GPA and Will by Defendant no.1 in favour of Defendant no.5 & 6 does not make the such documents void. It is argued that the suit property falls in abadi area which was previously an agricultural land which was also confirmed by the revenue records placed on record by the Plaintiff and as such since the area less than 1008 square yards of agricultural land, the documents were registered at Noida. It is CS 9025/16 Page 55 of 61 further averred that the Plaintiff has failed to show any dishonest purpose and the decree was passed in Suit No. 530/2013 & 531/2013 on the basis of statement made by Defendants no.1, 5 & 6 before the Court.
30.3 At this stage, perusal of the record reflects that the Defendants no. 5 & 6 had preferred suits seeking specific performance of the Agreement to Sell against Defendant no. 1 by way of two civil suit bearing no. 530/2013 & 531/2013 respectively before the Ld. Predecessor of this court qua the ground floor, second floor, third floor and two rooms on the roof of the suit property. On 06.08.2013, in both the aforementioned cases, the Defendant no.1 .i.e Bhagwan Singh appeared and made a statement that he shall undertake to execute the sale deed in favour of the Plaintiffs i.e. Defendants no. 5 & 6 respectively and he further stated that he recognized the Plaintiffs thereto (Defendants no.5 & 6 herein) as the owner of the property. However, admittedly no sale deed has been executed by Defendant no. 1 in favour of Defendants no. 5 & 6, per contra, it has come on record that documents such as GPA, Power of Attorney and Will executed by Defendant no.1 in favour of Defendant no. 5 & 6 which were registered at Noida on 20.05.2013. These documents admittedly have been executed on 17.07.2013 which are prior to the settlement before the court. No sale deed that has ever been executed by Defendants no. 5 & 6 pursuant to the statement made on 06.08.2013 by Defendant no. 1 have ever been brought on record or furnished during trial.
30.4 Furthermore, in the present case, the Plaintiffs have contended that the decrees of Defendants no. 5 & 6 were CS 9025/16 Page 56 of 61 collusive decree as the consideration paid was much less than the market value of the suit property. Perusal of the record reflects that it is the case of the Plaintiff that the suit property was owned by Late Sh. Kanhaiya. It is the case of the Plaintiff himself that the names of the five sons were mutated in the revenue record and the plaintiff has examined the relevant witness, PW-9 to show and corroborate that the suit property which is situated in khasra no. 176 was mutated in the names of five sons of late Sh. Kanhaiya. During trial, it has also come on record that Bhagwan Singh is the son of Raghubir Singh, who is the son of Kanhaiya Lal. The witness PW-9 placed on record the original revenue record for the year 2001-2002 and as per the records of revenue office the name of Raghubir Singh, Rajpal Singh, Ishwar Singh, Karam Singh and Ajeet Singh who are all the sons of Late Sh. Kanhaiya are reflected as the owners of equal portion. Though, the Plaintiff is claiming that the suit property is with the branch of Defendant no. 1 i.e Bhagwan Singh, as already observed earlier, nothing has come on record to show that there was any settlement qua any partition (oral or otherwise) between the sons of Kanhaiya Lal or thereafter, so as to make the suit property in the share of the family tree of Defendant no.1 as alleged.
30.5 In the considered opinion of this court, the suit property continues to be in the joint possession of all the legal heirs of Late Sh. Kanhaiya Lal and therefore, the Defendant no. 1 could not have transferred any right, title or interest or entered into any Agreement to Sell qua any portion the suit property which has not fallen in his share. None of the parties has placed on record any evidence to show that when and where was the property belonging to Late Sh. Kanhaiya was partitioned and CS 9025/16 Page 57 of 61 which of his sons were given which part or share of the property pertaining to khasra no. 176. Furthermore, in pleadings of both the Plaintiff and Defendants, after stating that the suit property was initially owned by Kanhaiya, it has been urged on behalf of Plaintiff and thereafter the suit property belonged to the family tree of Bhagwan Singh .i.e Defendant no. 1 and it has been the case of the Defendants that it was the self acquired property of Defendant No. 1 pursuant to the enactment of Hindu Succession Act, 1956, however, there are no averments as to when and how the suit property was partitioned between the sons of Kanhaiya, whose names are still reflected in the revenue records as the co- owners and thereafter how the suit property devolved upon the family tree of Defendant no.1 or became the self acquired property as contended. No witness has been examined in the present case to establish the factum of oral partition, if any. Therefore, in view of the these facts and circumstances, in the considered opinion of this court, the Defendant no.1 could not have transferred or agreed to have transferred a title better than what he himself possesses.
30.6 Furthermore, in the considered opinion of this court the Plaintiff has failed to show or prove any collusion nor any document or evidence has been placed on record which prima facie proves or corroborates that the executed documents by Defendant no. 1 in favour of Defendant no. 5 & 6 were invalid. In fact, careful and meaningful reading of the record shows that these documents were in fact executed by Defendant no. 1, 5 & 6 have not been disputed by the parties in the settlement. Therefore, in view of the observations and on considering the fact that there is nothing on record to suggest any dishonest CS 9025/16 Page 58 of 61 intention or collusion as per the documents filed and evidence lead on record, issue no. 2 and issue 2 are accordingly disposed off. It is made clear that this court has not expressed any opinion to confirm the authenticity of executed documents .i.e. GPA, Agreement to Sell, Will dated 20.05.2013 in view of the judgment of the Hon'ble Apex Court in Suraj Lamps Vs. State of Haryana, in SLP (c) 13917/2009 decided on 11.10.2011, as the same is not the subject matter before this court.
31. Issue No. 4 -Whether the Plaintiff is entitled to decree of permanent injunction as prayed?OPP The onus to prove this issue was on the Plaintiff. In view of the observations as made in the aforesaid issues, this issue is decided against the Plaintiff.
32. Issue No. 6- Whether the present suit is not maintainable in view of the preliminary objections raised by the Defendant?OPD.
The onus to prove this issue was on the Defendant.
32.1 The Defendants no. 1,2,5 & 6 have taken the plea in their joint Written Statement that the present suit has been filed without any cause of action. It is further averred that the Plaintiff being the son of Defendant no. 2 was not a class I heir as enshrined in Schedule I of the Hindu Succession Act, 1956 and had no right to claim any declaration, partition, claim of share in rent receipt or to maintain a suit for permanent and mandatory injunction when father Defendant no. 1 was alive.
CS 9025/16 Page 59 of 6132.2 On the other hand, it has been argued on behalf of the Plaintiff that the Defendant no. 2 to 6 have not lead any evidence and have failed to prove why the suit was not maintainable and the Defendant no. 1 has failed to discharge the onus. It is averred that the suit property was a part of the khasra no. 176 and was in use and occupation of the parties herein.
32.3 Careful and meaningful reading of the reflects that it is the case of the Defendants that the suit property was not a joint family property but has became the self acquired property of Defendant no. 1 namely Bhagwan Singh and it has further urged on behalf of the Defendants that mere mentioning of the property to be ancestral could not change the legal status of the property. It is also the case of the Defendants that the Defendant no. 2 being alive his son could not be a Class-I heir, however, as per Schedule of heir in Class-I and Class-II, a son is a Class-I heir. It is pertinent to mention that no evidence has been lead on behalf of the Defendants to discharge this onus or to prove the contentions so raised by them in the Written Statement. The Defendants have failed to show or prove that the present suit was not maintainable in the present form. Accordingly, this issue is decided against the Defendants and in favour of the Plaintiff.
RELIEF
33. From the discussions, as adumbrated herein-above, the Plaintiff has failed to prove its case. The present suit is hereby dismissed. No order as to cost.
Decree-sheet be prepared accordingly.
CS 9025/16 Page 60 of 61File be consigned to Record Room after due compliance.
Announced in the Open Court on 31.03.2023 (Gurmohina Kaur) Additional District Judge South District: Saket Courts New Delhi CS 9025/16 Page 61 of 61