Delhi District Court
Shri Ashok Kumar Tyagi vs Shri Sanjeev Kumar on 31 May, 2023
IN THE COURT OF SH. AJAY GULATI-II,
ADDITIONAL DISTRICT JUDGE-01, (CENTRAL)
TIS HAZARI COURTS, DELHI.
RCA NO. 61433/2016
CNR NO. DLCT01-001245-2013
SHRI ASHOK KUMAR TYAGI
S/O LATE SHRI JAGAN NATH
R/O GALI NO. 8,
VILLAGE-WAZIRABAD,
BURARI,
DELHI-110054 ....APPELLANT
VERSUS
1. SHRI SANJEEV KUMAR
S/O LATE JEET RAJ SINGH
R/O GALI NO. 8,
VILLAGE-WAZIRABAD,
BURARI,
DELHI-110054
2. SMT. UMESH TYAGI
W/O SHRI KRISHAN KUMAR TYAGI
R/O GALI NO. 8,
VILLAGE-WAZIRABAD,
BURARI,
DELHI-110054 ....RESPONDENTS
DATE OF INSTITUTION : 09.12.2013
DATE OF RESERVING JUDGMENT : 21.04.2023
DATE OF JUDGMENT : 31.05.2023
RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 1/25
JUDGMENT
1. The present appeal has been filed against the judgment and decree dated 18.11.2013 vide which the suit filed by the respondents herein was decreed by the Ld. Trial Court.
2. For the sake of convenience, the parties shall be referred to as per their original status before the Ld. Trial Court i.e. the appellant herein shall hereinafter be referred to as the defendant and the respondents herein shall hereinafter be referred to as the plaintiffs.
BRIEF FACTS OF THE CASE
3. The plaintiffs/respondents filed a suit before the Ld. Trial Court being CS No. 216/2001 (New No. 41/2013) seeking possession, damages and injunction against the appellant herein pleading inter-alia as follows:
i. That the respondents/plaintiffs are the owners of the property forming part of Khasra No. 326/261/173 situated in the revenue estate of village Wazirabad, Burari, Delhi alongwith a residential property constructed in a portion of said piece of land as shown in the site plan having been purchased from Smt. Khazani Devi, wife of Late Shri Hukum Singh through a registered sale deed dated 03.08.2000 and the defendant being the distant relative of Smt. Khazani Devi was allowed to use a portion of the suit property as a licensee.
ii. That after the purchase of the suit property by the plaintiffs, the defendant was approached to vacate the suit property however the defendant failed to do so and as such the plaintiffs got served a legal notice dated 28.04.2001 upon the defendant and terminated the license of the defendant directing him to handover the RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 2/25 possession of the portion to the plaintiffs before 31.05.2001 and further to pay damages at the rate of Rs. 5000/- per month for the unauthorized occupation from 01.06.2001.
iii. The defendant sent his reply to the legal notice by denying the title of the plaintiffs and claimed ownership of the portion of the suit property of which he was in possession and in the said reply, the defendant also alleged that the sale transaction between the plaintiff and Smt. Khazani Devi is of no consequence.
4. The defendant filed his written statement challenging the suit of the plaintiffs inter-alia pleading as under:-
i. That the suit property, which forms part of Khasra No. 326/261/173 situated in the Abadi area of village Wazirabad, was owned by Late Grand-Father of the defendant namely Sh. Layak Ram and the said Layak Ram died intestate leaving behind two sons namely Sh. Ram Dass and Sh. Hukum Singh.
ii. Sh. Ram Dass got married to one Smt. Prasani Devi and he left behind only one son namely Jaganath from his first wife and then Sh. Ram Dass got married to Smt. Attar Kali from whom he had no issue.
iii. Sh. Jaganath died intestate leaving behind four sons namely Sh.
Anand Tyagi, Ashok Kumar Tyagi (Appellant herein), Raj Kumar Tyagi and Sh. Vikram Singh Tyagi and all of them inherited the estate of Late Sh. Jaganath.
iv. It was also pleaded that the other son of Late Sh. Layak Ram namely Hukum Singh got married to Smt. Bhagwati from whom he had two daughters namely Smt. Rama and Smt. Shyama and Smt. Bhagwati pre-deceased Sh. Hukum Singh.RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 3/25
v. After the death of Smt. Bhagwati, Sh. Hukum Chand got married to Smt. Khazani Devi (predecessor-in-interest of the plaintiffs/respondents herein) and there was no issue out of his wedlock with Smt. Khazani and thus it was claimed that Smt. Khazani Devi did not have any right to sell whole of the property to the plaintiffs since the daughters of Late Sh. Hukum Singh i.e. Smt. Rama and Smt. Shyama also had their respective shares in the suit property being the LRs of Late Sh. Hukum Singh.
vi. The sale deed dated 03.08.2000 is a sham document and has no legal sanctity since the suit property is the subject matter of partition suit which at the time of filing of the written statement was pending before the Ld. Civil Judge.
vii. The defendant is also the co-owner of the suit property in his own right.
ISSUES
5. From the pleadings of the parties, the Ld. Trial Court vide order dated 27.09.2007 had framed the following issues:-
1. Whether the plaintiff is entitled to the decree of possession as prayed? OPP
2. Whether the plaintiff is entitled to decree of damages as prayed? OPP
3. Whether the plaintiff is entitled to the decree of perpetual injunction as prayed? OPP
4. Whether the defendant is co-owner of the suit property? OPD
5. Relief.
EVIDENCE LED BY THE PARTIES
6. Perusal of the trial record shows that the respondents examined their RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 4/25 SPA Sh. Krishan Kumar Tyagi as PW-1 (Brother of plaintiff no. 1 and Husband of the plaintiff no. 2) who tendered his evidence and he relied upon the following documents:-
S. No. Exhibit Documents
1. PW1/1 Special Power of Attorney executed by
&PW1/2 both the plaintiffs.
2. PW1/3 Site plan.
3. PW1/4 Sale deed dated 03.08.2000.
4. PW1/5 Copy of legal notice dated 28.04.2001.
5. PW1/6 Postal receipt.
6. PW1/7 Reply dated 07.05.2001 to the legal
notice.
7. The plaintiffs also examined one draftsman as Ex. PW-2 who had prepared the site plan of the suit property.
8. The defendant on the other hand had examined himself as DW-1 and relied upon the photocopy of one surviving members certificate as Ex.
DW1/1 and also on an order dated 08.02.2011 passed by Ld. Civil Judge vide which the application under Order 1 Rule 10 CPC moved by one Sh. Sanjiv Kumar Tyagi was dismissed and the said order was exhibited as Ex. DW1/2.
9. The Ld. Trial Court after hearing the parties had decided all the issues in favour of the plaintiffs and against the defendant and decreed the suit.
ARGUMENTS ON BEHALF OF THE APPELLANT
10. Ld. Counsel for the Appellant has assailed the judgment of the Ld. Trial Court on the following grounds:-
i. That the testimony of PW-1 could not have been read into RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 5/25 evidence by the Ld. Trial Court since the original plaintiffs did not enter into the witness box to depose in support of their case and rather caused their SPA to depose on their behalf and thus it is submitted that the deposition given by the attorney on behalf of his principal could not have been relied upon by the Ld. Trial Court. In support of this argument, Ld. Counsel for the appellant has relied upon the various judgments i.e. (1) Janki Vashdeo Bhojwani vs. Indusind Bank Ltd, 2004 AIR SCW 964, (2) Vidhyadhar vs. Mankikrao & Anr. AIR 1999 SC 1441, (3) Kirpa Singh vs. Ajaipal Singh & Ors. AIR 1930 Lahore 1, (4) Martand Pandharinath Chaudhari vs. Radha Bhai Krishna Rao Deshmukh, AIR 1931 Bombay 1907.
ii. It is further contended on behalf of the appellant/defendant that the Ld. Trial Court has failed to appreciate the fact that a suit for partition in respect of the suit property was already pending and the said suit had been instituted prior to the filing of the suit by the respondents/plaintiffs and as such the Ld. Trial Court ought to have stayed the proceedings of the suit as required under Section 10 of the CPC and thus no decree could have been passed in the suit filed by the respondents until the partition suit filed by the appellant would have been finally decided. In support of this argument, Ld. Counsel for the appellant has relied upon the various judgments i.e. (1) Dropati Devi & Ors. vs. Jaswant Singh & Anr., 157 (2002) DLT 306, (2) Shri Sagar Shamsher Jang Bahadur Rana & Anr. vs. UOI & Ors., ILR (1979) 1 Delhi, (3) C.L. Tandon vs. Prempal Singh Rawat, AIR 1978 Delhi 221, (4) M/s C. Raman & Company vs. M/s Modern Motor Works, AIR 1973 P&H 454, (5) Harjeet Singh Maini vs. Paramjeet Singh Maini, 153 (2008) DLT RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 6/25 127, (6) S. Anand Deep Singh vs. Smt. Ranjeet Kaur & Ors, AIR 1992 Delhi 87.
iii. It has also been contended that after the death of Late Sh. Layak Ram, all his properties devolved upon his sons namely Late Sh. Ram Dass and Late Sh. Hukum Singh and since there was no partition between them therefore on the demise of Sh. Hukum Singh, Smt. Khazani Devi had only succeeded to the 1/3rd estate of Late Sh. Hukum Singh as one of the LRs and being a hindu widow, she only had life interest in the said properties and as such Late Smt. Khazani Devi was not competent to execute the sale deed in respect of whole of the property in favour of the respondents herein and thus the decree passed by the Ld. Trial Court is liable to be set aside. In support of this argument, Ld. Counsel for the appellant has relied upon the various judgments i.e. (1) Bhagat Ram (D) by LRs vs. Teja Singh (D) by LRs, AIR 2002 SC 1 and (2) Smt. Dhanistha Kalita vs. Ramakanta Kalita & Ors., AIR 2003 Gauhati 92.
ARGUMENTS ON BEHALF OF THE RESPONDENTS
11. Per Contra, Ld. Counsel for the respondents has countered the arguments of the appellant as under:-
i. It has been contended that the respondents had purchased the suit property by virtue of a registered sale deed dated 03.08.2000 and even the said sale deed was challenged by the daughters of Late Smt. Khazani Devi by filing a civil suit being CS No. 160/2008 and the said suit was dismissed by the Ld. Civil Judge and therefore the defendant has no right to challenge the said sale deed or to remain in possession of the suit property of which the RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 7/25 respondents are the registered owners.
ii. It has also been contended that the PW-1 is the real brother of plaintiff no. 1 and the husband of the plaintiff no. 2 and he was very much involved in the whole transaction and was completely aware of the facts and circumstances of the present case thus he was competent to depose on behalf of the plaintiffs being related to the plaintiffs and merely because the plaintiffs did not enter into the witness box would not be sufficient to discard the testimony of PW-1.
iii. It has also been contended that the defendant has claimed himself to be the owner of the suit property however he has failed to prove on record his ownership qua the suit property and therefore the appellant has no locus-standi to either challenge the ownership of the plaintiffs/respondents or to object to the testimony having been recorded on behalf of the plaintiff. iv. Ld. Counsel for the respondents, while relying upon the documents Ex. DW1/P2 which is the certified copy of the judgment dated 31.01.2013 passed in CS No. 124/2011 (Old No. 98/2000), has contended that the said suit was filed by the appellant herein alongwith his brother against Smt. Khazani Devi and her daughters in which the other brothers of the appellant herein were also co-defendants and the said suit was filed seeking partition and injunction however the said suit was dismissed by the Ld. Civil Judge holding that the plaintiff has failed to show any right over the land falling in Khasra No. 326/261/173 of Village Wazirabad, Burari.
v. Ld. Counsel for the respondents, while relying upon the judgment RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 8/25 i.e. Ex. DW1/P3, has contended that even the daughters of Late Smt. Khazani Devi had filed a suit seeking permanent injunction i.e. CS No. 316/2000 and in the said suit, the appellant herein as well as his brother were also the co-plaintiffs however even the said suit was dismissed vide judgment dated 22.01.2005 in which the Ld. Senior Civil Judge has categorically held that the plaintiffs (Daughters of Late Smt. Khazani Devi and Appellant herein) had failed to prove that they have any right in respect of the land falling in Khasra No. 121, 174, 131 and Khasra No. 5/3, 275/175 and 277/176 situated in Village, Wazirabad, Delhi. vi. Ld. Counsel for the respondents has lastly contended that in the said suit i.e. CS No. 316/2000, the daughters of Late Smt. Khazani Devi i.e. Smt. Rama and Smt. Shyama did not enter into the witness box and rather the appellant herein had deposed and in the said suit, the Ld. Court had categorically held that there was no joint ownership of the properties between Jagan Nath and Late Smt. Khazani Devi.
ANALYSIS AND FINDINGS
12. I have gone through the complete record of the Ld. Trial Court as well as the record of the present appeal including the written submissions filed by the respective parties and the judgments relied thereon.
13. The Ld. Trial Court, vide the impugned judgment, has categorically rejected the claim of the defendant qua his ownership.
14. Before dealing with the rival contentions, it is appropriate to take note of the testimony led by the parties before the Ld. Trial Court.
15. The PW-1 in his cross-examination, has deposed that he has personal RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 9/25 knowledge about the pendency of various litigations in respect of the suit. The PW-1 also admitted that the defendant was residing in the suit property prior to the purchase of the suit property by the plaintiff however he deposed that the defendant was residing as an unauthorized occupant. The PW1 also deposed that at the time of purchase of the suit property from Late Smt. Khazani Devi, he had seen a Khatauni for the year 1988-89 exhibited as Ex. PW1/DX1 and as per the said document, Late Smt. Khazani Devi had 3/20 share. The PW-1 also deposed that prior to Late Smt. Khazani Devi, Late Layak Ram had 3/10th share was divided between his two sons namely Ramdas and Hukum Singh in equal proportion of 3/20 share each. The PW-1 also deposed that he is aware of another facts of the present case having been told by both the plaintiffs. The PW-1 also admitted that Late Smt. Khazani Devi had 3/20 share by way of Ex. PW1/4. He also deposed that Smt. Khazani Devi was having 2000 sq. yds share in the entire land out of which the plaintiffs are in possession of 1363 sq. yds whereas the defendant was in possession of 250 sq. yds.
16. The defendant in his cross-examination has deposed that in the year 2000, a suit for partition against Smt. Khazani Devi was filed by him and his brother. The applicant/DW-1 had also admitted the site plan filed by the plaintiff i.e. Ex. PW2/1 and also admitted the portion shown in red colour to be in his possession. The DW-1 also admitted that the suit for partition filed by him alongwith other i.e. CS No. 98/2000 (New No. 24/2011) was dismissed by the Ld. Civil Judge vide judgment and decree dated 31.01.2013 i.e. Ex. DW1/P2. He also deposed that the suit filed by him alongwith his brother and Smt. Rama and Smt. Shyama against Late Smt. Khazani Devi seeking injunction RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 10/25 was also dismissed by the Ld. Civil Judge vide judgment and decree dated 22.01.2005 i.e. Ex. DW1/P3. He also deposed that he has no document to show that he has any legal right in respect of the portion of the property which is in his possession. The DW-1 also deposed that Late Smt. Khazani Devi had income from agricultural properties belonging to her husband Late Sh. Hukum Singh. He also admitted that after the death of Sh. Hukum Singh, all the properties which were in the name of Hukum Singh were mutated in the name of Late Smt. Khazani Devi.
17. The Ld. Trial Court while deciding the Issue No. 1 has observed as under:-
"22. ...As per first clause at page no. 4 of sale deed Ex. PW1/4 Smt Khazani Devi the respect of land/property measuring 17 bigha 2 biswa (16 bighas 1 biswa in khasra no. 326/261/173 and 1 bigha and 1 biswa in khasra no. 260/228/173 situated in the Abadi of village Wazirabad and she had sold and transferred the said share 3/20 in respect of aforesaid khasra nos. in favour of second party i.e. plaintiffs herein. In the written statement defendant has taken the plea that Smt Khazani Devi was not entitled to sell the 3/20 share in respect of land/property measuring 17 bigh 2 biswa (16 bighas 1 biswa in khasra no. 326/261/173 and 1 bigha and 1 biswa in khasra no. 260/228/173) and hence sale deed Ex. PW1/4 is illegal and nonest in the eyes of law. But here, the legal proposition is that defendant has not been able to prove on record that he is the co-owner in the suit property nor he has filed any counter claim for declaration that the sale deed Ex. PW1/4 should be declared null and void.
23. In the sale deed Ex. PW1/4 at page no. 5 page no. 3 it is mentioned that a portion of the said property subject matter of agreement to sell ha been encroached by few persons including Sh. Ashok Kumar Tyagi and the second party shall be competent and empowered to take appropriate action against the said unauthorized occupant at their own cost.RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 11/25
Subsequently, notice dated 28.02.2001 Ex PW1/5 has been sent to the present defendant calling him to vacate and handover the physical possession of the portion marked red on or before 31.05.2001. The said notice has been replied vide reply Ex. PW1/7 dated 07.05.2001. The defendant has in toto denied the notice Ex. PW1/4 and had stated that Smt. Khazani Devi widow of Late Sh. Hukum Singh has no right, title or interest to sell the piece of land with super structure which is owned and in possession of defendant. The sale transaction if any in this regard is of no consequence and it does not confer any right, title or interest in favour of plaintiffs. The defendant in the reply further disclosed that the suit for partition and injunction is pending between the defendant and others and Smt. Khazani Devi and as such there could not have been any sale by Smt. Khazani Devi in favour of any person.
24. The sale deed Ex. PW1/4 is of date 03.08.2000. Whereas as per order of Hon'ble Hon'ble High Court of Delhi in CM 7778/2004 (Stay), learned counsel for respondents i.e. counsel for Smt. Khazani and others had undertaken that she shall not create any third party interest in the suit property. The sale deed Ex. PW1/4 being prior to the undertaking dated 12.07.2004 before Hon'ble Hon'ble High Court of Delhi has no effect of said undertaking. Furthermore, defendant has not filed any proceedings of alleged partition suit and it is also not the case of the defendant that Khazani Devi could not have sold her share by virtue of any court order."
18. Before the Ld. Trial Court, the Issue no. 4 was specifically framed in respect of the ownership of the appellant and the Ld. Trial Court has while rejecting the said claim has observed as under:-
"18. The formation of the present issue is in the manner as if the defendant is seeking the relief of declaration that he is co-owner of the suit property. However, this court is of the view that in the present suit the defendant cannot seek such declaration. Be that as it may, in support of his case, defendant relies upon the document Ex. DW1/1 the surviving members certificate and Ex. DW1/2 which is the ordersheet dated 08.02.2011 passed by Ms. RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 12/25 Aditi Garg, learned Civil Judge in suit no. 98/2000. This is an ordersheet which deals with an application under order 1 rule 10 CPC, order 22 Rule 10 CPC read with section 151 CPC on behalf of Sh. Sanjeev Kumar Tyagi S/o Late Sh. Jeet Raj Tyagi. But since, Sh. Sanjeev Kumar Tyagi who is the plaintiff herein has not been appearing before the said court, therefore, the application under order 1 rule 10 CPC was dismissed for non- prosecution. This Court is unable to understand for what purpose the defendant is relying on Ex. DW1/2. Ex. DW1/2 does not help the defendant in any manner. During the course of arguments learned counsel for the defendant argued that as per Ex. PW1/DX-1 which is the khatoni for the year 1988-89, the suit property i.e. khasra no. 326/361/171 are still shown mutated in the name of defendant and his other legal heirs. I have carefully gone through Ex. PW1/DX-1 and in the column no. 2 in khatoni where the name of the khatedar/with parentage address, nowhere the name of the defendant is mentioned. Therefore, the saying in the mouth of defendant that he is also one of the co-sharer in the suit property is not believable. So far Ex. DW-1/1 i.e. surviving member certificate is concerned, the pedigree of Late Sh. Laik Ram is not in dispute.
19. DW-1 has been cross examined by learned counsel for the plaintiffs. In his cross-examination, DW-1 has deposed that in the year 2000 they had filed a suit for partition against Smt. Khazani seeking partition of residential property in village Wazirabad being ancestral one. But the defendant did not know what was the total area of said residential property. In his further cross-examination, DW-1 deposed that the area was possibly 1650 square yards for which the suit for partition was filed. DW-1 defendant admitted the site plan Ex. PW2/1 and also admitted that the portion in the site plan Ex. PW2/1 in red colour is in his possession. Admittedly, various litigations have been going on between Smt. Khazani Devi one side and the defendant and others on the other side. This witness DW-1 had shown his ignorance whether the appeal filed by Smt. Khazani in suit no. 98/00 before learned Senior Civil Judge was allowed or not and whether it was held therein that the property shown in Ex. PW2/1 had already been partitioned during the lifetime of father of DW-1 Sh. Jagannath Singh. Ex. DW1/P1 is the judgment passed by Sh. O.P. Saini, the then Senior Civil Judge, RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 13/25 Delhi in MCA no. 181/00 filed by Smt. Khazani as appellant against the defendant herein who was respondent no. 2 there in the appeal. This appeal was against the injunction order passed by learned Civil Judge while disposing of application of the defendant and others as plaintiffs under Order 39 Rule 1 & 2 CPC whereby the appellant Smt. Khazani was restrained from raising construction in the suit property. This appeal dealt with khasra no. 326/261/173 (also subject matter of the present suit). The learned Senior Civil Judge vide his judgment dated 16.02.2001 allowed the appeal holding as under:-
"In view of the above discussion, when the facts indicates that the parties by some arrangement are living separately in separate portion, can one co-owner stop the other co-owner from raising construction in his own share moreso without pleadings any specific loss and damage to him,. In the instant case, the respondent-plaintiff have also sought an injunction on the plea that the construction is being raised without their consent without pleadings any specific loss to them,. In such a situation when the parties have consented to their respective separate shares, it would be highly unjust to stop one part from raising the construction in her own share at the instance of the other co-owner. As such the respondent-plaintiff have no prima facie case in their favour when they initially failed to prove that the suit property is joint one..."
21. DW-1 in his further cross examination in very categorical terms deposed that he cannot show any document before the court that he has any legal right in respect of the portion mark red in Ex. PW2/1. DW-1 showed ignorance if in the year 1987 Khazani Devi had sold a piece of agricultural land in favour of some third person and that his father Sh. Jagannath Tyagi was a witness to the said sale deed. He has denied the suggestion with regard to the damages @ Rs. 5000/- p.m. as occupational charges. After going through the documentary evidence as adduced on record by the defendant in support of his contention that he is co- owner of the suit property and also in view of his cross examination wherein the defendant deposed of not being in possession of any documentary proof that he has any legal right in respect of the red portion in the site plan Ex. PW2/1, the defendant has not been able to prove on record that he is the co-owner of the suit property. Therefore, this issue is decided against the defendant."
RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 14/25"emphasis supplied by me"
19. In so far as the other issues are concerned, the Ld. Trial Court has observed as under:-
"25. PW-1 who is the special power of attorney of both the plaintiffs has deposed in his cross-examination that he has personal knowledge about the pendency of various litigations in respect of the suit property. PW-1 admitted the defendant is presently residing in the suit property but he has no idea whether he is residing there since 1969. PW-1 has been residing in the suit property since 1983. It is correct that when PW-1 started residing in the suit premises in the year 1983 the defendant was already residing there. Taking clue from the year 1983, learned counsel for the defendant argued that suit for possession at the maximum should have been filed by plaintiffs within twelve years from 1983 whereas present suit has been filed in the year 2001 and hence the suit of the plaintiffs is barred by limitation. However, I am not convinced with the arguments of learned counsel for defendant. Under the circumstances, the cause of action arose in favour of plaintiff only in the year 2000 when they purchased the suit property vide sale deed Ex. PW1/4. PW-1 might have been residing in the suit premises since 1983 in his own rights which is not subject matter in the present suit. PW-1 denied the suggestion that after the death of Jagannath his share i.e. 3/20 devolved upon the defendant and his three brothers. Here, PW-1 volunteered that Sh. Jagannath had already sold his share on 03.07.1936 and certified copy of sale deed is Ex. PW-1/DX-2. True English translation of sale deed Ex. PW-1/DX-2 has been filed on record according to which Sh. Jagannath had sold the entire land measuring 57 bigha 19 biswas to one Sh. Tej Ram for a sum of Rs. 2000/-. Here in view of deposition of PW-1 that Sh. Jagannath had already sold his entire share on 03.07.1936 vide sale deed Ex. PW-1/DX-2, the onus had shifted upon the defendant that Jagannath had not sold his entire share. Perusal of cross examination of PW-1 further reveals that no suggestion has been put to PW-1 that Jagannath has not sold his entire share. The reliance of the defendant on the khatoni Ex. PW-1/DX- 1 is also of no help to the defendant as it is only a revenue record which shows mutation and this document cannot compete or frustrate a registered document i.e. sale deed Ex. PW1/4. As per RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 15/25 section 17 of Indian Registration Act the transfer of title in respect of immovable property is recognizable only by way of registered document. Defendant has taken various pleas that the sale deed Ex. PW1/4 is incorrect, illegal, nonest but the fact remains that he has not led any evidence in this regard nor he has filed any counter claim seeking the relief of declaration that the sale deed Ex. PW-1/4 should be declared as null and void. In his cross examination the defendant as DW-1 admitted that he is in possession of red portion as shown in site plan Ex. PW-2/1 but whether it measures 250 sq. yds. As per the case of the defendant he has been residing in the said red portion for numbers of years together, therefore, this statement of defendant that he does not know measuring 250 sq yards is not believable. The deposition of DW-1 defendant is not further not believable when he says that he do not remember if he had received notice Ex. PW-1/3 but he admits that reply Ex. PW-1/5 was sent by his advocate on his instruction.
26. Under the facts and circumstances and documentary proofs as well as testimonies of witnesses from both sides available on record, plaintiff has been able to prove on record that he had also purchased the piece of land vide sale deed Ex. PW-1/4 which is shown in red colour in site plan Ex. PW-2/1 which is in occupation of the defendant who has not evicted the same even after service of legal notice Ex. PW-1/5. This issue is accordingly decided in favour of plaintiff and against the defendant."
20. It is also relevant to take note of the fact that the appellant herein alongwith his brother had filed a suit against Late Smt. Khazani Devi and her daughters being CS No. 124/2013 (Old No. 98/2000) seeking partition and injunction however the said suit was dismissed by the Ld. Trial Court vide judgment dated 31.01.2013, i.e. Ex. DW1/P2 on the ground that the Court has no jurisdiction since the suit was held barred under Section 185 of the Delhi Land Reforms Act and also for the reason that the plaintiff (appellant herein) has failed to prove his ownership qua the suit property and the Ld. Court had observed as RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 16/25 under:
"12. Furthermore, plaintiffs have also sought a relief of permanent injunction restraining the defendants from creating any third party interest in the suit land nor to part with the possession of the same or even to raise any construction with partition of the suit land by metes and bounds. It is interesting to note that not a single document has been filed by the plaintiff to show that they have a right over the land in dispute in the capacity of a co-owner, no revenue records, khasra Girdhawari of Jamabandi etc. has been filed to substantiate the right of plaintiffs in the same. The plaintiffs have only produced photocopies of water connection bills and MTNL which is also hit by the provisions of section 65 of the Indian Evidence Act and cannot lead evidence as no permission of court is sought to produce secondary evidence in the case.
13. I have no hesitation in holding that plaintiffs have miserably failed to prove their case, in the present facts and circumstances and hence is not even entitled for the relief of permanent injunction as sought by him. The suit of the plaintiff is liable to be dismissed as it is hit by the provisions of Section 185 read with Section 55 of Delhi Land Reforms Act, hence is barred Under Order 7 Rule 11 CPC."
21. It is also a matter of record that the daughters of Late Smt. Khazani Devi namely Smt. Rama and Smt. Shyama had also filed a suit against their mother being CS No. 316/2000 and in the said suit the appellant herein was the plaintiff no. 4 whereas his brother was the plaintiff no. 3 and the said suit was filed seeking permanent injunction from selling/transferring or parting with the possession of the land falling in various Khasra No. 121, 174, 131 and Khasra No. 5/3, 275/175 and 277/176 situated in Village, Wazirabad, Delhi.
22. It is significant to take note of the fact that in the said suit i.e. CS No. 316/2000, the daughters of Late Smt. Khazani Devi did not enter into the witness box and it was the appellant herein who had only deposed RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 17/25 on behalf of the plaintiffs in the said suit. It is also a matter of record that the said suit was also dismissed vide judgment dated 22.01.2005 i.e. Ex. DW1/P3 and in the said case, the Issue no. 1 (framed qua the locus-standi of the plaintiffs therein), Issue no. 8 (framed qua the ownership of the plaintiff therein) and Issue no. 9 (framed qua the claim of injunction) were held against the plaintiffs therein (Daughters of Late Smt. Khazani Devi and Appellant herein) and in favour of Late Smt. Khazani Devi and it was held as under:
"....Issue No. 1.. The burden to prove this issue is on the defendant. The counsel for the defendant has contended that as per provision of 50 of Delhi Land Reform Act married daughters are not entitled to any share. As per the provision of DLR Act the married daughters are exempted from inheriting the property of deceased Bhoomidar. The counsel for the plaintiff has not shown any provision or not shown any case law to show that the plaintiff no. 1 and 2 being the married daughters of Sh. Hukum Singh are entitled to any share in the property left by Hukum Singh. The plaintiff no. 1 and 2 has not appeared in the witness box to prove the case. Only the plaintiff no. 4 appeared. The counsel for the defendant has contended that the Ram Dass and Hukum Singh separated their shares in the property. In para no. 4 of the plaint it is averred by the plaintiffs that after the death of Jagan Nath, the plaintiff no. 3 and 4 alongwith other representative of Sh. Jagan Nath inherited the shares left by Late Sh. Ram Dass. The defendant has proved a copy of the sale deed executed by the defendant in favour of Smt. Usha Devi wherein the fathers of the plaintiff no. 3 and 4 has sighted as a witness. So, it proves that Jagan Nath was not having any joint shares with the properties of the defendant in any manner. The plaintiff no. 3 and 4 are claiming their right through their father Jagan Nath. Sh. Jagan Nath was not having any right in the property of the defendant. The defendant also filed a photo copy of judgment passed by Sh. O.P. Saini, Ld. Senior Civil Judge, (the then he was) on the appeal of the defendant holding that "this circumstances itself put significance to the fact that there was atleast some sort of family settlement or arrangement. Otherwise such a huge chunk of the suit property would not have been sold RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 18/25 by the defendant no. 1, it negates the case of the plaintiff that the suit property is joint." During argument the counsel of the plaintiff has not stated as to whether he has filed any appeal against the order dated 16.02.01 passed by Ld. Senior Civil Judge. The plaintiffs have not produced any document to show that the property was joint. The PW-1 in the cross-examination has stated that "I do not know if my father sighted as a witness in the document of sale of Khasra No. 5/3. This witness also admitted that the defendant is the owner of the suit property as per revenue record and till date the plaintiffs have not challenged the mutation entered into the name of the defendant. The plaintiff even admitted that the mutation was entered in the name of the defendant. The plaintiffs have filed the present suit of permanent injunction without obtaining the relief of declaration and partition. So, in my view the simplicitor suit for injunction, without seeking any declaration and partition of agriculture property is not maintainable. So this issue is decided in favour of the defendant and against the plaintiff.
"....Issue No. 8.. As I have already decided Issue No. 1 in favour of the defendant and against the plaintiff. As per the provision of Delhi Land Reform Act, married daughters are not entitled to any share in the property of their father. The plaintiff no. 4 has failed to prove that the property of Late Sh. Hukum Singh and Late Sh. Ram Dass was joint. On the other hand, the defendant has produced the photocopy of the sale deed 15.06.87 wherein the father of the plaintiff no. 4 has sighted as a witness. The defendant has also produced a photocopy of the order dated 16.02.01 passed by Ld. Senior Civil Judge holding that the property was not joint. So, this issue is accordingly decided in favour of the defendant and against the plaintiffs. "....Issue No. 9.. The burden to prove this issue is on the plaintiff. As I have held in Issue No. 1 and Issue No. 8 that the plaintiff no. 1 and 2 are not entitled to any share in the properties left by their father. The plaintiff no. 3 and 4 has filed the present suit on the basis that as per provision of section 48 of Delhi Land Reforms Act, the right in the property of a widow are limited to the extent and she does not hold any capacity to transfer or alienate the land. She is not the absolute owner and she has got only life time interest to enjoy the property during her life time RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 19/25 only and her right in the suit property is only revisioner right which is to be reverted back on the plaintiffs as per law. The plaintiff in their evidence or in the pleadings has admitted that the defendant is the recorded Bhoomidar of the agricultural land left by Sh. Hukum Singh. It is also admitted that the defendant indulged in sale and transfer of the property for valuable consideration and is keeping the consideration amount with herself. The defendant is recorded bhoomidar in respect of the agricultural land left by Sh. Hukum Singh. The plaintiffs have not challenged the said mutation till date. It is also admitted by PW-3 that we do not move any petition or application before the Revenue Assistant for mutation of the property in the name of the plaintiff no. 1 and 2. We never moved any application or suggestions before the Revenue Assistant alleging that the transfer of the property in the name of the defendant after the death of her husband is illegal. It was also admitted that the defendant is the owner of the suit property as per the Revenue Record. I have never filed any declaration to claim that the defendant is illegal owner of the property. In my view, the simplicitor suit for injunction is not maintainable. The plaintiffs have to file a suit for declaration declaring that as per provision of Delhi Land Reform Act that they be declared as Bhoomidar of the agricultural land left by Sh. Hukum Singh.
But I am of the view that the simplicitor injunction without seeking any relief of declaration and partition is not maintainable and taking in view that the suit property has already sold by the defendant to the various persons and the plaintiffs have not raised any objection to the Revenue Authorities. The plaintiffs have not challenged the mutation entered into the name of the defendant before any Revenue Authority. I am also of the view and also taking into consideration that the father of the plaintiff no. 3 and 4 has signed as a witness in the Sale Deed dated 15.06.1987. The plaintiff also failed to prove that the property was joint between Sh. Ram Dass, Grand father of the plaintiff no. 3 and 4 and Sh. Hukum Singh. The plaintiffs have failed to prove this issue. So, this issue is decided in favour of the defendant and against the plaintiff."RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 20/25
23. Before this Court, the Ld. Counsel for the appellant has vehemently argued that the testimony of the PW-1 could not have been relied upon by the Ld. Trial Court while placing heavy reliance on the judgment passed by the Hon'ble Supreme Court of India in the case of Janaki Vashdeo (supra) and other judgments however the said contention though appears to be impressive but the same has no legs to stand and cannot be accepted since the PW-1 was not a stranger to the plaintiffs/respondents. The PW-1 was the brother of the plaintiff no. 1 and the husband of the plaintiff no. 2. It is no doubt that it is settled law that an attorney cannot depose in respect of the acts done by his principal however there are certain exceptions to this rule and in order to come to a conclusion whether testimony of an attorney on behalf of his principal can be relied upon or not, the relation between the parties must also have to be seen. A spouse or a family member certainly comes within that exception who can be presumed to be aware of the facts and circumstances relating to a particular transaction depending upon case to case basis. In the present case, the PW1 had categorically deposed that he is aware of all the facts and circumstances of the transactions between the parties and not even a single suggestion had been given to the PW-1 that he is not aware of the transaction between the parties.
24. Be that as it may, the Hon'ble Supreme Court of India in the case of Man Kaur (Dead) by LRs. vs Hartar Singh Sangha, 2010 (10) SCC 512 has carved out certain exceptions in which an attorney can depose on behalf of his principal in respect of the acts done by the principal and the Hon'ble Supreme Court has observed as under:-
"12. We may now summarize for convenience, the position RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 21/25 as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney holder who has signed the plaint and insti-
tuted the suit, but has no personal knowledge of the transac- tion can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized man- agers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a dif- ferent or subsequent attorney holder.
(f) Where different attorney holders had dealt with the mat- ter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the at- torney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his `state of mind' or `conduct', normally RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 22/25 the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his `bona fide' need and a purchaser seek- ing specific performance who has to show his `readiness and willingness' fall under this category. There is however a rec- ognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or `readiness and willingness'. Ex- amples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclu- sively managing the affairs of an old and infirm parent, a fa- ther/mother exclusively managing the affairs of a son/daughter living abroad.
"emphasis supplied by me"
25. The other contention raised by the Ld. Counsel for the appellant that the Ld. Trial Court ought to have stayed the proceedings of the suit since the partition suit was pending which was instituted prior to filing of the present suit by the plaintiffs however even the said argument is liable to be rejected for the simple reason that no such argument appears to have been made before the Ld. Trial Court.
26. Perusal of the Trial Court record shows that the appellant has not even filed any application under Section 10 CPC seeking stay of the suit before the Ld. Trial Court and therefore the said contention cannot be raised by the appellant before this Court more particularly when the partition suit, which was filed by the appellant alongwith other parties, had already been dismissed. Even otherwise for exercising powers under Section 10 CPC, the Court must be satisfied that the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between the parties under whom they or any of them claim litigating under the same title however the suit RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 23/25 which was filed by the respondents/plaintiffs was for recovery of possession on the basis of registered sale deed i.e. Ex. PW1/4 and the only issue which was required to be decided by the Ld. Trial Court was whether the plaintiffs are entitled to seek possession of the suit property from the defendant as he had no right to remain in possession of the suit property whereas perusal of the trial court record shows that a specific issue was also framed in respect of the ownership of the defendant and even the said issue was decided against the defendant which shows that the defendant has no right to remain in the suit property.
27. Once it is seen that no such application under Section 10 CPC had been filed before the Ld. Trial Court therefore the whole judgment cannot be set aside merely because the trial has been conducted during the pendency of said partition suit.
28. Lastly, the Ld. Counsel for the appellant has contended that Late Smt. Khazani Devi could not have executed the sale deed in favour of the plaintiffs since after the death of her husband i.e. Late Sh. Hukum Singh, she was left with only life interest in the estate of her husband by virtue of Section 14 of Hindu Succession Act however even the said contention is liable to be rejected for the same reason that no such plea was taken by the defendant in his written statement qua the limited life interest of Late Smt. Khazani Devi in the properties left by her husband.
29. Even otherwise, the said plea cannot be said to be available to the appellant herein since the appellant has himself failed to prove that he is the owner of the suit property by leading positive evidence. It shall be significant to take note of the fact that the issue relating to life RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 24/25 interest of Late Smt. Khazani Devi and the factum of jointness of property of the LRs of Late Sh. Ram Dass and Late Sh. Hukum Singh was conclusively determined by the Ld. Civil Judge in the judgment passed in the suit filed by the daughters of Late Smt. Khazani Devi as well as the appellant herein i.e. Ex. DW1/P3 as already noted in para no. 22 above.
30. The appellant/defendant has not only failed to prove any right, title or interest in respect of the suit property before the Ld. Trial Court however even in other litigations initiated against Late Smt. Kahzani Devi by the appellant herein as well as the daughters of the Late Smt. Khazani Devi, the appellant and the daughters of Late Smt. Khazani Devi had failed to prove any right over the suit property and therefore in the considered opinion of this Court, the appeal filed by the appellant has no merits and liable to be dismissed and thus the appeal is accordingly dismissed.
31. No order as to costs.
32. Appellate Decree-Sheet be prepared accordingly.
33. The present appeal file be consigned to Record Room after the aforesaid due compliance.
34. Trial Court Record be sent back alongwith copy of this Judgment.
Announced in Open Court (Ajay Gulati II)
31.05.2023. ADJ01/(Central)
(Judgment contains 25 pages) THC, Delhi.
RCA No. 61433/2016 Ashok Kumar Tyagi vs. Sanjeev Kumar and anr Page No. 25/25