Delhi District Court
Devender @ Chhotu vs Lekh Ram (Since Deceased) on 28 August, 2019
Devender @ Chhotu v. Lekh Ram & Anr.
IN THE COURT OF CHARU ASIWAL : CIVIL JUDGE - 08 (CENTRAL),
ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO : 93613/16 (OLD NO.198/14)
In the matter of :
Devender @ Chhotu
S/o Late Likhi Chand
R/o 457459, Block A,
THunts, Near Durga Chowk,
Bhalaswa Dairy, Delhi - 110 042. ...PLAINTIFF
VERSUS
1. Lekh Ram (since deceased)
S/o Late Mittar
R/o A449, Bhalaswa Dairy,
Gujjar Chowk, Delhi - 110 042.
2. Land & Building Department
Through its Director
Govt. of NCT of Delhi, Vikas Bhawan,
Behind ITO Building, New Delhi - 110 001
3. Kalawati,
W/o Lekh Ram
4. Vinod,
S/o Lekh Ram
5. Dinesh,
S/o Lekh Ram
6. Premwati,
W/o Hem Singh
SUIT NO : 93613/16 (OLD NO.198/14) Pg 1 of 31
Devender @ Chhotu v. Lekh Ram & Anr.
7. Suresh,
W/o Hem Singh
8. Mukesh,
W/o Rajender Singh
9. Neeta
W/o Mukesh
All residents of H.No.449,
Bhalaswa Dairy,
Gujjar Chowk, Delhi - 110 042. ...DEFENDANTS
Date of institution : 19.10.2012
Date of judgment : 28.08.2019
SUIT UNDER 31 OF THE SPECIFIC RELIEF ACT, 1963, MANDATORY
INJUNCTION AND FOR PERMANENT INJUNCTION
JUDGMENT
1. Vide this judgment, I shall decide a suit under Section 31 of the Specific Relief Act, 1963 ("SRA").
BRIEF FACTS OF THE PLAINT:
2. The brief facts necessary for the disposal of the present suit and as alleged by the plaintiff are that the plaintiff is the son of Late Lekhi Chand, s/o Late Mittar and real nephew of defendant No.1 who ancestrally are residents of Village Aya Nagar, New Delhi. The plaintiff is one of the coparceners of the Joint Hindu Family of late Mittar (grand father of plaintiff). The family pedigree of late Mittar which comprise the SUIT NO : 93613/16 (OLD NO.198/14) Pg 2 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
situation of the plaintiff in their joint Hindu family is as under: SH. MITTAR (DEID ON 18.02.1975) & SMT. CHAMPI W/O MITTAR (DIED ON 20.04.1982) LIKHI CHAND LEKH RAM LAYAK RAM DIED ON DEFENDANT NO.1 DEID ON 10.01.1995 21.11.2008 ALL ABOVE SONS OF LATE MITTAR DEVENDER @ CHHOTU S/O LATE LIKHI CHAND & PLAINTIFF
3. The government under the land and acquisition proceedings vide grant of award No.2209 dated 06.03.1969 had acquired the land admeasuring 481 Bighas and 14 Biswas in village Aya Nagar, New Delhi as per notification under section 4 of the Land Acquisition Act, 1894 vide No.F.15(30)/63L & H dated 04.09.1967, for the purpose of setting up of wireless station. In the above said land acquisition in village Aya Nagar, New Delhi, the Plaintiff's ancestral joint hindu family land, admeasuring 23 Bighas 18 Biswa was also acquired by the Government. Subsequent to aforesaid land acquisitions, the government through Defendant No.2 i.e. Land & Building Department had invited the application form for the SUIT NO : 93613/16 (OLD NO.198/14) Pg 3 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
issuance of the alternative allotment of developed residential plot in lieu of acquired land under the scheme of large scale acquisition, development & disposal of land in Dehi1961. On 25.04.1988, the father of the plaintiff, i.e. Late Likhi Chand, S/o Late Mittar being the eldest son of the joint hindu family of Late Mittar has initiated the claim in his name, for the issuance of the alternate allotment of the developed residential flat vide application form Serial No.409 dated 25.04.1988 vide F.32(70)/1/88/L & B/ALT., through Secretary of defendant No.2. Further, the aforesaid claim of the plaintiff's father namely Likhi Chand was also adequately responded back by the defendant No.2 i.e. Land & Building Department, Vikas Bhawan, Delhi. During his lifetime, the father of the plaintiff i.e. Late Likhi Chand continued with his efforts for the allotment of the alternate plot by the defendant No.2, as per the aforesaid scheme. In this regard, numerous reminder letters duly acknowledged to defendant No.2 were addressed by late Likhi Chand, on 29.09.2008 and on 20.10.2008. In the same letters, the father of the plaintiff requested the defendant No.2 qua allotment of the alternate plot as per the scheme against the acquired land. Further, late Likhi Chand also queried for the delay on the part of defendant No.2 for the allotment SUIT NO : 93613/16 (OLD NO.198/14) Pg 4 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
and also conveyed about the changed correspondence address to the defendant No.2. On 21.11.2008 the father of the plaintiff expired, leaving behind his widow namely Prakashi Devi with two sons namely Devender @ Chhotu i.e. plaintiff, Rakesh and three daughters. Soon after the death of Likhi Chand, the general attitude towards the disposal of family's property, rights and wealth of the defendant No.1 became unreasonable & abnormal. As, on the question of issuance of the alternate plot by the defendant No.2 in lieu of acquired ancestral land, the defendant No.1 used to avoid the question and tried to convince or mislead the plaintiff that the alternate plot proceedings of Late Likhi Chand is into process and soon the plot will be issued by the defendant No.2 in the family's favour. As the pursuance of the acquired alternate plot was in the name of late Likhi Chand, the plaintiff remained calm for the situation, with the belief the situation was under his control. The situation got troublesome on the eve of Diwali 2011, when on the gathering of entire family and on the plaintiff's question of the partition of the family's remaining properties and other wealth, the defendant No.1 categorically threatened the plaintiff for having the exclusive and sole right on the promised issue land in form of the alternate plot covered SUIT NO : 93613/16 (OLD NO.198/14) Pg 5 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
under the scheme of large scale acquisition, development and disposal of land in Delhi by the defendant No.2. As on one hand, the defendant No.2 has not provided any satisfactory replies to the plaintiff father's letters of request for the issuance of the alternative plot in lieu of acquired ancestral land during his lifetime without adjournment of limitless inexcusable time for decades and above all the threat of the defendant No.1 to get the alternative plot issued exclusively and solely in his own name, rung the tension alarm for the plaintiff. Resultantly, on 16.11.2011, the plaintiff through his mother immediately moved a Right to Information application with respect to file No.F.32(70)/1/88/L&B/ALT with the defendant No.2 regarding the status and enquiry for the application filed by Late Likhi Chand for the alternate plot against the acquired ancestral land of the plaintiff. On not receiving the appropriate reply by the defendant No.2, the mother of the plaintiff was required to file an appeal on 17.01.2012. Accordingly, the RTI application appeal was decided on 02.02.2012 by the Dy. Secretary (ALT) Sh. Bhupender Singh. On 09.02.2012, the plaintiff was utterly shocked and grievously surprised with the knowledge of the provided documents of the defendant No.1. As per these documents, the defendant No.1 despite SUIT NO : 93613/16 (OLD NO.198/14) Pg 6 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
having the knowledge of claim of Sh. Likhi Chand for the alternate plot, maliciously initiated his exclusive personal claim for the alternative allotment of developed residential plot in lieu of acquired land under the scheme of large scale acquisition, development & disposal of land in Delhi1961, by fraudulently and malafidely presenting and concealing numerous information with the defendant No.2 vide No.F.32(70)/1/88/L&B/ALT on 06.06.1988. In the provided documents, a registered document dated 13.07.1996 has also come to the knowledge of the plaintiff, wherein it is stated to be a Relinquishment deed. This relinquishment deed has shown to be executed by Late Likhi Chand, S/o Late Mittar, Smt. Bati, W/o Late Layak Ram and Sh. Rajesh, S/o Late Layak Ram in favour of defendant No.1 i.e. Sh. Lekh Ram. Interestingly, despite registration the alleged relinquishment deed dated 13.07.1996 has been executed in grave violation of the law. As late Sh. Likhi Chand was not into legal position to solely relinquishing the fruits of the acquired ancestral land of the plaintiff or his family. The plaintiff states that the defendant No.2 has also illegally relied on the aforesaid relinquishment deed dated 13.07.1996 as against the interest of the plaintiff and his entire family. As the defendant No.2 has not issued any SUIT NO : 93613/16 (OLD NO.198/14) Pg 7 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
adequate notice to the plaintiff or to his family ever for relinquishing the plaintiff or his respective family claim in the promised proposed alternate plot yet to be issued on the acquisition of the plaintiff's ancestral land. This somewhere reflects the hand in gloves of both the defendants together as against the inherited legal interest of the plaintiff and his entire family. The plaintiff being a coparcener in the above stated acquired joint Hindu family properties by the government is legally to reap each and every fruit and benefits duly arise, with respect to his shares in the promised alternative plot to be issued by the defendant No.2 which reflects vide reference of defendant No.2 letter bearing No. No.F.32(70)/1/88/L&B/ALT2. The document dated 13.07.1996 executed by the father of the plaintiff in favour of defendant No.1 is void ab initio, being contrary to law. And as per the annexed documents, it is clear that both the defendants have been using this alleged void relinquishment deed dated 13.07.1996 as against the inherited legal interest of the plaintiff.
WRITTEN STATEMENT OF DEFENDANT NO.2
4. The defendant No.2 filed its written statement controverting the suit of the plainiff while submitting that the above noted suit has been filed by SUIT NO : 93613/16 (OLD NO.198/14) Pg 8 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
the plaintiff seeking a decree of adjudging the registered relinquishment deed dated 13.07.1996 as null and void is barred by limitation as the plaintiff has approached this Ld. Court after a period of more than 17 years of its execution. It is matter of record that the father of plaintiff i.e. Sh. Likhi Chand went for heavenly abode in the year 2008 and during his life time he had no objection as to the execution of relinquishment deed dated 13.07.1996 so at this juncture the plaintiff is precluded from filing the instant suit for adjudging the execution of such deed as null and void. The present suit is liable to be dismissed as the land admeasuring about 23 bigha and 18 biswas of Sh. Mittar who was the recorded owner as per revenue records was acquired in village Aya Nagar vide award No.2209 dated 06.03.1969 and the possession of the said land was taken over on 09.06.1969 for the entire land. The purpose of acquisition of land as per the award was for setting up a wireless station. The recorded owner late on died on 18.02.1975 and during his lifetime he did not apply for allotment of alternative plot in lieu of his acquired land. The application for allotment of alternative plot was later on filed by Sh. Likhi Chand on 25.04.1988 i.e. after a period of about 19 years from the date of acquisition. The another son of Late Mittar i.e. Sh. Lekh Ram also SUIT NO : 93613/16 (OLD NO.198/14) Pg 9 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
moved an application for allotment of alternative plot on 08.06.1988 claiming himself to be the legal heir of Late Mittar. The third son i.e. Sh. Layak Ram went for heavenly abode on 10.01.1995. Later on Sh. Lekh Ram submitted relinquishment deed along with indemnity bond duly registered in the office of SubRegistrar. In the relinquishment deed due shares have been shown relinquished in favour of Sh. Lekh Ram by his brother Likhi Chand, Smt. Bati, W/o Late Layak Ram and Sh. Rajesh, S/o Late Layak Ram. The fate of the application has not been yet decided by the department for want of certain reports from the LAC concerned and which is awaited. In view of the relinquishment of share in favour of Sh. Lekh Ram the plaintiff is not entitled for any relief whatsoever from this Hon'ble Court. No notice has been served upon the answering defendant by the plaintiff thus the suit of the plaintiff is liable to be dismissed for want of mandatory notice under Section 80 C.P.C. WRITTEN STATEMENT OF DEFENDANT NO.1
5. It is contended by defendant no.1 that the suit of the plaintiff is not maintainable and same is liable to be dismissed as the principle of latches applicable and suit is barred by law of limitation. The status of the joint family is no more exist since in the year 1970 there is partition in SUIT NO : 93613/16 (OLD NO.198/14) Pg 10 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
the family and joint family status comes to an end and deceased Mittar died in the year 1975. Thereafter, all the family members got their shares. The status of the joint family was not in existence even at the time of birth of the plaintiff. The land which was acquired was no more in existence, the question prior to the birth of the plaintiff even as per the Land Acquisition Act if a land is not notified for public purpose no one can claim either that property and the compensation had already disbursed. It is act unimaginable that the land was acquired 1967 and claim was launched in the year 1961. How the claim was lodged prior to the acquisition and is not maintainable. It is specifically mentioned here that Likhi Chand, S/o Sh. Mittar after giving his NOC in favour of Sh. Lekh Ram, S/o Sh. Mittar relinquished his share/interest through a relinquish deed dated 13.07.1996. It is to be submitted in this regard that there was no joint family in the year 1988 in fact the son of Mittar were residing separately in their respective houses at Aya Nagar, New Delhi and he had taken a larger share from ancestral property at the time of partition which was left by the defendant No.2 from his share and in lieu of this the father of the plaintiff had executed relinquishment deed during his life time in favour of the defendant No.1 along with other family SUIT NO : 93613/16 (OLD NO.198/14) Pg 11 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
members. It is pertinent to mention here that as per the record on 06.06.1988 the father of the plaintiff had already given his no objection in favour of the defendant No.1 and as per law he was competent to dispose of his right claims. Plaintiff is a greedy person who not only want to grab the share of his brothers sisters and mother in the property which was exclusively owned by Late Likhi Chand and though the defendant No.2 is not aware that for such letter as mentioned in the para 3 but any how these letters are nothing but some attempt to raise issue which was not in existence as plaintiff as well as his father was not having any title interest after the relinquishment deed as well as NOC and though and also the father of the plaintiff had already taken his share in lieu of property in question. It is to be submitted in this regard that the answering defendant had already given his share to the deceased Likhi Chand in lieu of the same Likhi Chand had executed NOC in favour of defendant No.1 on 06.06.1988 and also executed relinquishment deed dated 13.07.1996 because of this reason it is pertinent to mention here that with the partition is already taken place in the year 1970. The contention of para 9 is nothing but a concocted and false story cooked by the plaintiff just to satisfy his greed. The plaintiff as well as his family SUIT NO : 93613/16 (OLD NO.198/14) Pg 12 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
members were aware with the NOC as well as the relinquishment deed and because of this reason the deceased Likhi Chand has not challenged the relinquishment deed as well as NOC during his life time the case he had already taken a larger share at the time of partition hence he had relinquished his share along with other two relinquisher namely Smt. Wati W/o Layak Ram and Rajesh. The father of the plaintiff and other person who has executed the relinquishment deed were very much competent to execute the said document and that time there was no joint family status was survive. Documents are legally valid and cannot be questioned after lapse of 16 years are beyond the law of limitation. Since all the family members were aware about the relinquishment deed and there was no need to issue any such notice as per the prevailing law. The plaintiff again claiming right title and interest since the right of his father had already been released in favour of defendant No.1 during his life time. However, the plaintiff is claiming the same. There was no joint family status hence, the question of coparcenery does not arise at all. Even prior to the birth of the plaintiff, the joint family status came to an end and the deceased Mittar and his sons had already divided their share so the question of any right of SUIT NO : 93613/16 (OLD NO.198/14) Pg 13 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
plaintiff over the alternative plot does not arise at all. The plaintiff is not challenging the execution of the documents but the plaintiff is challenging the legal validity of the documents whether the plaintiff has ever questioned admitted partition from his father during his lifetime the property which was as well as compensation amount which was used and expenses by the deceased Likhi Chand cannot be claimed from those persons to whom the money of compensation was given or right was transferred there is no question of any illegality in the documents which was executed by the deceased.
6. No replication to the written statements of defendants No.1 and 2 had been filed on behalf of plaintiff.
ISSUES
7. From the pleadings of the parties, following issues were framed for trial vide order dated 24.09.2015:
1. Whether the plaintiff is entitled to the decree of specific performance, as prayed for? OPP.
2. Whether the plaintiff is entitled to the decree of mandatory injunction directing defendant No.2 to reinstate the file of the plaintiff's claim in respect of alternate plot in lieu of acquired ancestral land (prayer No.2), as prayed for?
OPP.
SUIT NO : 93613/16 (OLD NO.198/14) Pg 14 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
3. Whether the plaintiff is entitled to the decree of permanent injunction against defendant No.2, as prayed for? OPP.
4. Whether the suit of the plaintiff is barred by limitation? OPD1.
5. Whether the suit of the plaintiff is barred under Section 80 of CPC? OPD2.
6. Relief.
PLAINTIFF'S EVIDENCE
8. To prove his case, plaintiff has examined himself as PW1 whose examination in chief is by way of affidavit Ex.PW1/1. PW1 relied on following documents:
1. Ex.PW1/A (colly.) (OSR) Photocopy of Ration card and Driving License.
2. Ex.PW1/B (OSR) Death certificate of Likhi Chand, father of deponent.
3. Ex.PW1/C and D (colly.) letters dated 29.09.2008 and 22.10.2008 written by father of the plaintiff to officials of defendant No.2.
4. Ex.PW1/E office copy of legal notice dated 11.07.2012.
5. Ex.PW1/F postal receipts.
6. MarkA death certificate of Late Sh. Mittar, grandfather of deponent.
SUIT NO : 93613/16 (OLD NO.198/14) Pg 15 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
7. MarkB photocopy of RTI receipt dated 16.11.2011.
8. MarkC photocopy of appeal dated 17.11.2012.
9. PW1 also relied upon the documents already exhibited by summoned witness PW2 as Ex.PW2/A to Ex.PW2/F who was examined prior to Pw1 on 14.01.2016.
PW2 Sh. Layak Ram, UDC from Land & Building Department was a summoned witness who brought the following record:
1. Ex.PW2/A (OSR) (colly.) copy of documents award No.2209 dated 06.03.1969 of acquired land measuring 481 bighas 14 biswas in Village Ayanagar, New Delhi, as per notification u/s 4 of Land Acquisition Act, 1894. Further, the land acquired by the department of grandfather of the plaintiff is on page No.47 of the documents.
2. Ex.PW2/B (OSR) (colly. Running into 1 to 12 pages) are copies of initialization of the claim of alternate plot etc. of plaintiff's father namely, Sh. Likhi Chand dated 25.04.1988.
3. Ex.PW2/C (OSR) response copy of the Land & Building Department i.e. defendant No.2 dated 01.02.1996 on page No.13 of list of documents.
4. Ex.PW2/D (OSR) copy of hearing notice dated 02.02.2012 in file SUIT NO : 93613/16 (OLD NO.198/14) Pg 16 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
No.32 (70)1/88/L & B/ALT/1518083 by Sh. Bhupender Singh, Deputy Secretary (ALT) issued to Smt. Parkashi.
5. Ex.PW2/E (OSR) (colly. running into 14 to 55 pages) application form and other documents filed by defendant No.1 with defendant No.2 with list of documents filed by plaintiff on 28.11.2015.
6. Ex.PW2/F (OSR) (Colly. running into 21 to 23 pages) original copy of registered relinquishment deed dated 13.07.1996 issued by plaintiff's father in favour of defendant No.1.
9. On the other hand, no evidence was lead on behalf of defendants.
10. I have heard the arguments and perused the record. Issuewise findings as follows: ISSUE NO.1 Whether the plaintiff is entitled to decree of specific performance as prayed for? OPP
11. While deciding this issue, this court shall first exercise its jurisdiction under Section 152 of Code of Civil Procedure, 1908 and correct the inadvertent mistake made while writing issue No.1. Issue No.1 shall now be read as "Whether the plaintiff is entitled to an order of specific relief under Section 31 of Specific Relief Act for cancellation of relinquishment deed dated 13.07.1996, as prayed for? OPP SUIT NO : 93613/16 (OLD NO.198/14) Pg 17 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
12. The onus of this issue is upon the Plaintiff. It is pertinent to note that the Plaintiff through the present suit desires the Relinquishment Deed dated 13.07.1996 (exhibited as Ex.PW2/F) to be cancelled pursuant to Section 31 of the SRA. Section 31 (1) of the SRA states that:
31. When cancellation may be ordered.- (1) Any person against whom a written instrument is void or voidable, and who has resonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable, and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
13. A reading of the section elucidates that resort to Section 31 of the SRA can be sought only when the following essential requirements are fulfilled:
(a) that the written instrument in question is either void or voidable against the plaintiff;
(b) that the plaintiff reasonably apprehends serious injury from the instrument left outstanding;
(c) that in view of the circumstances of the case, the Court considers it proper and reasonable to administer the protective and preventive justice prayed for.
14. As such, the first requirement of section 31 is that the relief can be claimed only by "any person against whom a written instrument is void or SUIT NO : 93613/16 (OLD NO.198/14) Pg 18 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
voidable". Therefore, while it is not necessary that the claim for cancellation must be brought only by an 'executant' to the written instrument, what is essential is that the person bringing such claim must have some interest in the property which is the subject matter of the disputed written instrument and such person reasonably apprehends serious injury from the instrument being left outstanding.
15. The Plaintiff, in the present suit, has stated that he is the son of Late Shri Likhi Chand, and is one of the coparceners of the ancestral joint Hindu family of Late Shri Mittar (i.e., the grandfather of the Plaintiff). It is further submitted by him that the land acquired by the Government in 1969 was the ancestral property of Shri Mittar's joint Hindu family. Therefore, the alternative plot which was to be allotted in lieu of their joint Hindu family property, would also have been the ancestral land of their joint Hindu family. Accordingly, he has submitted that his father, i.e., Late Shri Likhi Chand was not in the legal position to solely relinquish the fruits of the acquired ancestral land of the plaintiff or his family in favour of Defendant No. 1. As such, the Plaintiff has based his claim/interest in the disputed property on the basis of being a coparcener in the joint Hindu family of Late Shri Mittar.
SUIT NO : 93613/16 (OLD NO.198/14) Pg 19 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
16. It is a settled principle of law that if a person claims that the property in question is joint family property, he has to specifically plead in his plaint as to how the existence of a joint family property came into being and other such relevant and material circumstances. The Hon'ble High Court of Delhi in Sagar Gambhir v. Sukhdev Singh Gambhir (RFA (OS) 46 of 2016) has categorically observed that:
"this position of law alongwith facts as to how the properties are HUF properties was required to be stated as a positive statement in the plaint of the present case, but it is seen that except uttering a mantra of the properties inherited by defendant No.1 being "ancestral" properties and thus the existence of HUF , there is no statement or single averment in the plaint as to when this HUF which is stated to own the HUF properties came into existence or was created."
17. The same position of law has been recently reiterated by the Hon'ble High Court of Delhi in Sh. Rajeev Tandon v. Smt. Rashmi Tandon CS (OS) 501 /2016.
18. Applying the aforesaid principle to the present case, it is clear that the Plaintiff, other than stating that he is a coparcener in the joint hindu family of Shri Mittar (who had died prior to the birth of the plaintiff), has SUIT NO : 93613/16 (OLD NO.198/14) Pg 20 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
not set out any particulars as to:
(a) how there existed a jointness of family status of Shri Mittar since the beginning;
(b) how the jointness of the family status of Shri Mittar continued to subsist till the institution of the suit;
(c) how the property acquired by the Government from Shri Mittar was acquired/obtained by Shri Mittar;
(d) how the right to get the alternative plot allotted passed on to the children of Shri Mittar (through partition, inheritance, testamentary disposition etc.).
19. Further, the Plaintiff has stated that his father had filed an application for allotment of the alternate plot with Defendant No. 2 because he was the eldest son of the family. Through this statement, the Plaintiff has attempted to imply that Shri Likhi Chand, his father, had applied for the entire alternate plot on behalf of the joint Hindu family of Shri Mittar as the eldest son. This implication is reaffirmed by the averment in paragraph 9 of his plaint:
As, on the question of issuance of the alternate plot by the defendant No.2 in lieu of acquired ancestral land, the defendant No.1 used to avoid the question and tried to convince or mislead the plaintiff that the alternate plot proceedings of Late Likhi Chand is into process and soon the plot will be issued by the defendant No.2 in the family's favour. As the pursuance of the acquired alternate plot was in the name of SUIT NO : 93613/16 (OLD NO.198/14) Pg 21 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
late Likhi Chand, the plaintiff remained calm for the situation, with the belief the situation under his control" (sic).
20. However, a perusal of the application form of Shri Likhi Chand, exhibited as Ex. PW2/B (OSR) shows that Shri Likhi Chand, father of the plaintiff had applied for the alternate plot only to the extent of 1/3rd of the property. Further, the Plaintiff, at paragraph 13 of his plaint has alleged that:
"As per these documents, the defendant No.1 despite having the knowledge of claim of Sh. Likhi Chand for the alternate plot, maliciously initiated his exclusive personal claim for the alternative allotment of developed residential plot in lieu of acquired land under the scheme of large scale acquisition, development & disposal of land in Delhi1961, by fraudulently and malafidely presenting and concealing numerous information with the defendant No.2 vide No.F.32(70)/1/88/L&B/ALT on 06.06.1988".
21. The Plaintiff through the aforesaid paragraph also seems to imply that the Defendant No.1 had in 1988 applied for allotment of the entire alternate plot in his favour. However, a perusal of the application form of Shri Lekh Ram, Defendant No.1, exhibited as Ex.PW2/E (OSR) shows that Shri Lekh Ram, as on 06.06.1988, had applied for the alternate plot SUIT NO : 93613/16 (OLD NO.198/14) Pg 22 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
only to the extent of 1/3rd of the property.
22. As such the application forms of Shri Likhi Chand and Shri Lekh Ram of 1988, which were filed with the Defendant No.2 much before the Relinquishment Deed (exhibited as Ex.PW2/F) of 1996, but after the birth of the Plaintiff, themselves seem to demonstrate that the property was not considered/treated as joint by the children of Shri Mittar. Therefore, the same is not compatible with the Plaintiff's version of the property being ancestral property. Further, the Defendant No. 1 has asserted that there was a partition amongst the family members in 1970 and the joint status of their family came to an end. Further, it has been stated by Defendant No. 1 that Shri Mittar expired in 1975 and thereafter all the family members got their shares. However, the fact of partition has only been mentioned by way of a bare averment and no proof of the same has been brought on record.
23. Based on the submission of the Defendant No.1 and the application forms of Shri Likhi Chand and Shri Lekh Ram, it is probable that the right in the potential alternate plot flowed to the sons of Shri Mittar by way of inheritance. It is not in dispute that Shri Mittar was the owner of the property acquired by the Government in 1969, and that he died in 1975 SUIT NO : 93613/16 (OLD NO.198/14) Pg 23 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
and his widow Smt. Champi died in 1982. However, the nature of the property (ancestral or selfacquired) has not been established on either side. If the property in the hands of Shri Mittar was selfacquired, then upon inheritance to his sons, the same would not become joint family property and as such, the Plaintiff would have had no right in the property acquired by the Government and subsequently, in the potential alternate plot. In this regard, the Hon'ble Supreme Court of India recently in Arshnoor Singh v. Harpal Kaur & Ors. Civil appeal No.5124/2019 reiterated that:
"Post - 1956, if a person inherits a self acquired property from his paternal ancestors, the said property becomes his selfacquired property, and does not remain coparcenary property."
24. However, if we consider the property to have been a coparcenary or ancestral property in the hands of Shri Mittar, the law governing the inheritance insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment to the Hindu Succession Act of 2005, will be have to looked at. In this regard, the summarization of this law as done by the Hon'ble Supreme Court of India in Uttam v. Saubhag Singh & Ors, Civil Appeal No.2360/2016., becomes relevant:
SUIT NO : 93613/16 (OLD NO.198/14) Pg 24 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
"(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.
(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving selfacquired property or by the application of Section 6 proviso, such SUIT NO : 93613/16 (OLD NO.198/14) Pg 25 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
property would devolve only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants."
25. As set out above, it is clear that at the time of death of Shri Mittar in 1975, the recorded owner of the property acquired by the Government, his wife Smt. Champi was alive. Therefore, at the time of his death, the proviso to Section 6 was attracted and as such his coparcenary property would have devolved as per intestate or testamentary succession and not by doctrine of survivorship. Further, since there is no mention of a Will/testamentary disposition of the property by Shri Mittar, the property would have devolved in accordance with Section 8 of the Hindu Succession Act, 1956. It is pertinent to note that under point (vi) of its summary, the Hon'ble Supreme Court has emphatically laid down the law that "after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it SUIT NO : 93613/16 (OLD NO.198/14) Pg 26 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
as they hold the property as tenants in common and not as joint tenants." From this discussion it is clear that the right that the plaintiff's father acquired in the potential alternate plot from 1975, was not coparcenary or ancestral in nature. This position has also been reiterated by the Hon'ble High Court of Delhi in Sangeeta Bhambani v. Jatinder Sardana & Ors. CS (OS) 350/12 datd 26.03.2014. In this case, it was held by the Hon'ble High Court of Delhi that:
"If Shri Uttam Sardana died after the coming into force of the Hindu Succession Act, 1956, any properties even if inherited by Shri Chiranjiv Lal Sardana from his father Shri Uttam Sardana would be held by Shri Chiranjiv Lal Sardana as his individual properties and not for the benefit of his sons."
26. In light of the above, it is clear that qua the Plaintiff, neither the property acquired in 1969 by the Government nor the right in the potential alternate plot was ancestral or coparcenary. Therefore, given that the Plaintiff has based his right in the disputed property on ground of coparcenary interest alone and pressed for cancellation of the Relinquishment Deed dated 13.07.1996 (exhibited as Ex.PW2/F) solely on the ground of lack of authority of Likhi Chand to relinquish the SUIT NO : 93613/16 (OLD NO.198/14) Pg 27 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
coparcenary property exclusively, the Plaintiff cannot be taken to be a person against whom the written instrument is void or voidable.
27. Accordingly, the Plaintiff does not have the sufficient locus standi to seek cancellation of the Relinquishment Deed dated 13.07.1996 (exhibited as Ex.PW2/F); and thus issue No.1 is decided against the Plaintiff and in favour of the Defendants.
ISSUE NO.2 Whether the plaintiff is entitled to the decree of mandatory injunction directing defendant No.2 to reinstate the file of the plaintiff's father claimed in respect of alternate plot in lieu of acquired ancestral land (prayer No.2), as prayed for? OPP.
28. The onus of this issue also lies on the Plaintiff. Since the Plaintiff's request for reinstatement of his father's file was based on the Defendant No.2's alleged illegal reliance upon the Relinquishment Deed dated 13.07.1996 (exhibited as Ex.PW2/F), this issue is inextricably linked to issue No.1. Accordingly, without dealing with the question of jurisdiction of this Court to deal with this issue under Section 9 of CPC; in light of the outcome of issue No.1, this issue is also decided against the Plaintiff. ISSUE NO.3 Whether the plaintiff is entitled to the decree of permanent injunction against Defendant No. 2, as prayed for? OPP.
29. This issue is also dependent upon the outcome of issues No.1 & 2 SUIT NO : 93613/16 (OLD NO.198/14) Pg 28 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
above, being a remedy consequential to the remedies sought in issues No.1 & 2 above. In view of the discussion under issues No.1 & 2, this issue is decided against the Plaintiff.
ISSUE NO.4 Whether the suit of the plaintiff is barred by limitation? OPD1
30. The onus of proving this issue is on the defendants. Defendant No.1 and Defendant No.2 have stated that the present suit is liable to be dismissed on the ground of limitation alone, since the suit for cancellation of the Relinquishment Deed dated 13.07.1996 (exhibited as Ex.PW2/F), has been filed in 2012, approximately 17 years after execution of the Relinquishment Deed in 1996. It is pertinent to note that per Article 59 of the schedule of the Limitation Act, 1963, the period of limitation of 3 years begins from the time when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside first become known to the plaintiff. Therefore, the starting point of the period of limitation is based on "knowledge" of the Plaintiff. In the present suit, the Plaintiff has stated that he was made aware of the Relinquishment Deed dated 13.07.1996 (exhibited as Ex.PW2/F) for the first time in 2011, when he received the reply under the RTI appeal. While the Defendants SUIT NO : 93613/16 (OLD NO.198/14) Pg 29 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
have made bare averments that the Plaintiff had knowledge of the Relinquishment Deed dated 13.07.1996 (exhibited as Ex.PW2/F), no material particulars or evidence of the same have been brought on record. As such, they have not discharged the burden. Accordingly, this issue is decided in favour of the Plaintiff. ISSUE NO.5 Whether the suit of the plaintiff is barred under Section 80 of CPC? OPD2.
31. The onus of proving this issue is on Defendant No.2, being the Land & Building Department. Defendant No.2 has stated that the present suit is liable to be dismissed on the ground of noncompliance with Section 80 of the CPC since no notice under the said section was served upon the Defendant No.2. However, it is pertinent to note that apart from this bare averment, no evidence has been brought on record by the Defendant No.2. On the other hand, the Plaintiff through his exhibits Ex.PW1/E and PW1/F, has placed on record the office copy of the legal notice dated 11.07.2012 sent to Defendant No. 2 under Section 80 of the CPC on 13.07.2012 (i.e., two months prior to the institution of the suit) along with the postal receipt of the same. Further, the Defendant No.2 has appeared in the present case and received sufficient opportunity of presenting its defence. As such, Defendant No.2 has not discharged its SUIT NO : 93613/16 (OLD NO.198/14) Pg 30 of 31 Devender @ Chhotu v. Lekh Ram & Anr.
burden of evidencing noncompliance with Section 80 of CPC. Accordingly, this issue is decided in favour of the Plaintiff. RELIEF
32. In view of the discussion hereinabove on the issues, it is held that Plaintiff has not been able to prove his case. Therefore, suit of the Plaintiff is dismissed. No order as to cost.
Decree sheet be prepared accordingly.
Digitally
signed by
CHARU
CHARU ASIWAL
ASIWAL Date:
File be consigned to Record Room. 2019.08.29
14:59:47
+0530
Announced in the open court (Charu Asiwal)
on 28.08.2019 Civil Judge - 08 (Central)/Delhi
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