Delhi District Court
Nirmala Devi W/O Sh. Ram Chander vs Delhi Development Authority on 15 July, 2016
Page No. 1 of 17
IN THE COURT OF MS. CHHAVI KAPOOR, CIVIL JUDGE,
WEST DISTRICT, TIS HAZARI COURT, DELHI.
Suit No. 179/14
Nirmala Devi W/o Sh. Ram Chander
R/o 3209, More Gate, Ram Bazar,
Delhi 110006 ............. Plaintiff
Versus
1. Delhi Development Authority
Through its Secretary,
Vikas Sadan, INA, New Delhi 23
2. Sh. Shyam Lal, Proprietor
Shyam Friends Motor Works
Deceased through his Lrs
(i) Smt. Gulshan Khanna - Wife
(ii) Sh. Harish - Son
(iii) Sh.Anoop - Son
R/o AD40, Tagore Garden, New Delhi
3. Sh. Lekh Raj
S/o Late Sh. Om Prakash
R/o 3209, Ram Bazar, Mori Gate,
Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 2 of 17
Delhi - 110006
4. Sh. Shyam Babu
S/o Sh. Tulsi Ram
R/o H139, Shakurpur,
Delhi .............Defendants
Date of Institution of the Suit : 15.10.1999
Date of Reserving of Judgment : 08.06.2016
Date of Judgment : 15.07.2016
JUDGMENT
1. This is a suit for Declaration, Possession and Permanent Injunction with the following facts :
2. Plaintiff claims that her natural father Sh. Ghamandi Ram and mother had expired when she was five years old. It is claimed that one Sh. Bhagwan Dass (now deceased) was the real brother of Ghamandi Ram and had adopted the plaintiff after the death of her parents. It is claimed that the plaintiff was adopted in the year 1953 as per the customs and traditions of the Kori cast by Sh. Bhagwan Dass, who was issuless from his own marriage.
Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 3 of 173. It is claimed that the plaintiff got married to one Sh. Ram Chander and started living at Karnal, Haryana after her marriage. It is claimed that the marriage of plaintiff with Sh. Ram Chander was performed at the residence of Sh. Bhagwan Dass and the "Kanyadan" was performed by him in presence of the relatives of both the families.
4. It is claimed that in the year 1976, Bhagwan Dass was alloted plot no. W121, Rewari Line Industrial Area, PhaseII, measuring 100 sq. yds. by DDA under the scheme of shifting of nonconforming trade and industry. It is claimed that Bhagwan Dass was doing business of "Kabad" and was shifted from Motia Khan, where he was carrying out his business. Plaintiff claims that after the death of Sh. Bhagwan Dass, she is entitled to inherit the abovesaid plot, being his sole legal heir. It is stated that the plaintiff was residing with Sh. Bhagwan Dass at the time of his death at 3209, Ram Bazar, Mori Gate, Delhi and was looking after his health. It is alleged that the funeral ceremonies were organized by the plaintiff and she bore the expenses of conducting the rites.
5. It is stated that before the death of Bhagwan Dass, the defendant no. 4 Shyam Babu was supervising the business of kabad, belonging to Sh. Bhagwan Dass and he was allowed to carryon his own business in the property in an area about 20 sq. yds. as a tenant.
Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 4 of 17However, it is claimed that but he is no longer in occupation of the said property. It is alleged that after the death of Sh. Bhagwan Dass, the defendant no. 3, 4 and one late Sh. Ravi Prakash colluded with each other and represented to the plaintiff that Sh. Bhagwan Dass had executed a Will in favour of defendant no. 4 and defendant no. 3 (minor at that time)and had transferred the rights of the suit plot in their favour. It is alleged that the plaintiff was paid an amount of Rs. 5000/ and was influenced to part with the possession of the original records of the suit plot and was made to sign some papers by the defendant no. 3 and 4. Subsequently, the plaintiff got to know that the defendant no. 3 and 4 had further sold the property to the defendant no. 2 without obtaining permission of DDA. However, DDA has not allowed mutation of property in favour of defendants. Plaintiff has also come to know that letters of administration have been obtained on the strength of a Will by the defendant no. 3 and 4, in respect of the property of Sh. Bhagwan Dass, without the information of the plaintiff. The plaintiff had therefore filed a suit for Permanent Injunction bearing suit no. 566/88 against Ravi Prakash, Shyam Babu (defendant no. 4) and DDA but the said suit has been withdrawn by plaintiff for the purposes of filing this suit. She has also approached the court of District Judge and has filed an application for quashing of the order dt. 02.08.1988 in probate case Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 5 of 17no. 144/87, by virtue of which probate of the Will was obtained by the defendant no. 3 and 4. It is claimed that the order dt. 02.08.1988 was recalled on 28.10.1998 for decision of the case afresh. Plaintiff has alleged that the defendant no. 3 and 4 have no relation with each other or with Bhagwan Dass as they have never looked after him in his life. It is alleged that a fraud has been played upon the court of District Judge in probate case no. 144/87. It is stated that the suit property is in possession of defendant no. 2 at present. It is further alleged that the Will dt. 18.10.1985 is a forged and fabricated document and therefore, no rights could have accrued on the defendant no. 3 and 4 on the strength of said document. The suit has been filed with the following three prayers:
(a) A decree of declaration, declaring the plaintiff alone being the adopted daughter of deceased Bhagwan Das and there being no other direct legal heir of Sh. Bhagwan Das, is entitled to allotment/mutation/inheritence of plot no. W121, Rewari Line Industrial Area PhaseII.
(b) A decree of possession in favour of the plaintiff and against the defendant no. 2 directing the defendant to hand over possession of plot no. W121, Rewari Line Industrial Area PhaseII to the plaintiff on as is where is basis.
(c) A decree of permanent injunction restraining defendant no. 1 not to Suit No. 179/14 Nirmla Devi Vs DDA & Ors.Page No. 6 of 17
mutate plot no. W121, Rewari Line Industrial Area PhaseII in favour of any person other than the plaintiff and further to restrain defendants no. 2 from parting with the possession of plot no. W121 mentioned above and creating any third party interest therein.
6. In the written statement filed by DDA, it has been stated that the suit plot stands alloted to Sh. Bhagwan Dass on 10.09.1975, whereafter, possession has been handed over to him on 11.09.1975. DDA has stated that they have not mutated the suit plot in the name of defendant no. 3 and 4 as they are in receipt of the claim of the plaintiff as well. Hence, DDA has claimed that they would process and decide the application for mutation subject to resolution of the title dispute amongst the parties. It is claimed that after the inspection of the suit plot, the same has to be found in possession of defendant no. 2 and on enquiry it has been found out that he is running his business of Shyam Friends Motor Works from the said premises.
7. A joint written statement has been filed by defendant no. 2 and 4, in which it has been denied that the plaintiff was the adopted daughter of Sh. Bhagwan Dass or that she had any right in the suit plot. Instead, it was claimed that it was the defendant no. 2 who was the rightful owner of the suit property and was in possession of the same. It was further denied that the plaintiff was raised and was Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 7 of 17given in marriage by Sh. Bhagwan Dass as her father. It was also stated that the suit plot was sold by Sh. Bhagwan Dass to the defendant no. 3 and 4, whereafter they have further sold away the property to defendant no. 2 and hence, it was claimed that the plaintiff had no rights to claim mutation of the property in her name. It was claimed that a Will was created in favour of defendant no. 3 and 4 and after the death of Sh. Bhagwan Dass, letters of administration were obtained in accordance with law. It was claimed that the orders were passed by the Probate Court on 02.08.1988 and had become final and therefore, would operate as resjudicata in respect of this issue. It was denied that the Will executed in favour of defendant no. 3 and 4 was a forged document and accordingly, it was claimed that plaintiff had no rights in the suit plot. A prayer was therefore, made to dismiss the suit.
8. In the written statement filed on behalf of defendant no. 3, it was similarly denied that the plaintiff was the adopted daughter of Sh. Bhagwan Dass or that she had been adopted as per the customs prevalent in their caste. It was denied that the plaintiff was brought up by Sh. Bhagwan Dass as his own real daughter or that he had conducted the ceremonies in her marriage. It was therefore, claimed that the story of adoption was an after thought and cooked up to grab the property of Sh. Bhagwan Dass. It was claimed that the plaintiff was Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 8 of 17looked after by her grant mother Ganga Devi and it was she, who had performed all the ceremonies in her marriage. It was claimed that all the funds for the marriage of the plaintiff were contributed by the joint family and not solely by Sh. Bhagwan Dass. Defendant no. 3 claimed that it was him and his family who were taking care of Shri Bhagwan Dass at the time of his ill health and was residing with him a year before his date of demise. It was claimed that plaintiff came to Delhi in order to grab the property of Sh. Bhagwan Dass and in order to extract money from the defendants. It was also stated that the plaintiff got her name added in the Ration Card of Sh. Bhagwan Dass for which a complaint was filed in the court of ASJ Sh. P. L. Sharma. It is claimed that the plaintiff was fully aware of the Probate proceedings and whatever objections were raised by her, were false. It was claimed that the probate proceedings were still pending in the Court of Ms. Rekha Sharma, Ld. ADJ, Delhi. However, it was denied that the plaintiff had any rights in the suit property and accordingly, it was prayed that her suit was liable to be dismissed.
9. On the basis of pleadings on record following issues were framed for adjudication on 02.11.2006. :
1. Whether the plaintiff is entitled for decree of declaration as prayed for? OPP
2. Whether the plaintiff is entitled for decree of possession as prayed for?
Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 9 of 17
OPP
3. Whether the plaintiff is entitled to decree of Permanent Injunction as prayed for? OPP
4. Whether the plaintiff has no locus standi to file the present suit as stated in preliminary objection No. 1? OPD 2,3 and 4
5. Whether the suit has not been properly valued for the purpose of Court Fees and jurisdiction? OPD
6. Whether the suit is barred by limitation as stated in preliminary objection no. 5? OPD
7. Relief.
10. In her evidence, plaintiff has examined as many as two witnesses. Plaintiff has examined herself as PW1 and tendered her evidence by way of affidavit Ex. PWA. PW1 has relied upon the following two documents; Copy of order dt. 28.04.99; Mark A, Death Certificate of Smt. Laxmi Devi; Ex. Pw1/2, Copy of statement of Smt. Laxmi Devi; Mark B, Certified copy of judgment dt. 10.08.2004 in the suit titled "Shyam Babu Vs State"; Ex. Pw1/4, Copy of letter dt. 09.12.96; Ex. PW1/5, Postal receipt; Ex. PW1/6, AD Card; Ex. PW1/7, Notice dt. 09.09.99; Ex. PW8, Postal Receipt; Ex. PW1/9.
11. One Sh. Ashok Kumar, UDC, Record Room (Civil), Tis Hazari Courts, Delhi was examined as PW2. This witness has relied upon the following documents; Photocopy of deletion entry in Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 10 of 17Goshwara Register regarding destruction of case no. 566/1988 titled "Nirmla Devi Vs Ravi Prakash & Ors" shown at serial no. 159; Ex. PW2/1, Order of Ms. Tyagita Singh, Civil Judge regarding destruction of the suit no. 566/1988; Ex. PW2/2 (OSR).
12. In its evidence, defendant no. 1 i.e. DDA examined one Sh. D.K. Gupta, Assistant Director (industrial Branch) as D1W1, who has tendered his evidence by way of affidavit; Ex. D1W1/X.
13. Another witness namely Sh. Rakesh Kumar, Assistant Director, Industrial, DDA was examined as D1W2. D1W2 tendered his evidence by way of affidavit Ex. D1W2/A and relied upon the following documents; Copy of allotment letter dt. 10.09.1975; Ex. D1W2/1 (OSR), Copy of possession letter dt. 11.09.1975; Ex. D1W2/2 (OSR), Deficiency letter dt. 27.08.1997 issued to Shyam Babu; Ex. D1W2/3 (OSR), Copy of probate order dt. 25.01.1989; Mark X (colly), copy of letter dt. 27.08.1979 issued to Ms Nirmla Devi; Ex. D1W2/4 (OSR).
14. Defendant no. 3 examined himself as D3W1 and tendered his evidence by way of affidavit Ex. D3W1/X.
15. One Sh. Jagdish Chand S/o Late Sh. Duli Chand was examined as D3W2. He tendered his evidence by way of affidavit Ex. DW3/Y.
16. The right to lead evidence of defendant nos. 2 and 4 was Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 11 of 17closed vide order dt. 14.10.2015.
17. Afer conclusion of evidence, final arguments were heard by this court. My issue wise findings ar as follows:
ISSUE NOS. 1, 2, 3 AND 418. Issue nos. 1, 2, 3 and 4 can be disposed off by way of a common finding which is as follows :
19. The suit has been filed with the allegations that the plaintiff is the adopted daughter of Late Sh. Bhagwan Dass and was thus entitled to be declared as the owner of plot no. W121, measuring 100 square yards, Rewari Line, Industrial Area PhaseII. It is an admitted fact that this plot was allotted by DDA in the name of Sh. Bhagwan Dass in the year 1976. As per DDA, the plot still stands in the name of Sh. Bhagwan Dass in their official records. Plaintiff has alleged that the defendant no. 3 and 4 had sold the suit plot to the defendant no. 2 by claiming that a Will dated 18.10.1985 had been executed by Sh. Bhagwan Dass in their favour by virtue of which, they were authorized to sell the suit property. It was the allegation of plaintiff that this Will dated 18.10.1985 was a forged document. In fact, plaintiff had proved that the letters of administration granted in favour of the defendant no. 3 and 4, on the strength of this Will dated 18.10.1985 (vide orders of Ld. District Judge dated 02.08.1988) were recalled and it was held that the Will did not appear to be the last and genuine Will of Sh. Bhagwan Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 12 of 17Dass. Orders of Additional District Judge,Delhi dated 10.08.2004 in Probate petition no. 144/87 were proved as document Ex. PW1/4. I have gone through the order dated 10.08.2004 wherein the Superior Court has discussed the nature of relations existing between Sh. Bhagwan Dass and the plaintiff during his lifetime. Though, the Superior Court had held in various parts of the order that the plaintiff was being treated by Sh. Bhagwan Dass as his daughter, however, the court has fallen short of holding that she was infact adopted by Sh. Bhagwan Dass and hence, was to be treated as his adopted daughter for the purpose of Hindu Succession Act. Therefore, the plaintiff cannot take shield of the orders of the ADJ dated 10.08.2004 to plead that the fact of her adoption by Sh. Bhagwan Dass stood proved.
20. When the plaintiff entered into the witness box and deposed as PW1, she stated in her examination in chief that her adoption ceremony was witnessed by her aunt Smt. Laxmi, W/o Ghasi Lal. However, the plaintiff claimed that this aunt had now expired and therefore, she placed on record photocopy of her statement recorded in the previous injunction suit filed by her against one Sh. Ravi Prakash, defendant no. 2 and DDA. The said statement of Smt. Laxmi is found on the Court record as document Mark B. In the said statement of Smt. Laxmi Devi dated 17.01.1986, she has no where stated that the plaintiff was adopted by Sh. Bhagwan Dass in her presence. However, Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 13 of 17the witness has stated that she was present at the time of marriage of the plaintiff. It therefore appears that the witness Laxmi was not physically present at the time of alleged adoption of the plaintiff and therefore, she has refrained from stating so before the Court. Therefore, the statement of the plaintiff that her adoption ceremony was witnessed by Smt. Laxmi has remained unsubstantiated. Evenotherwise, in her crossexamination (dated 03.12.2008), plaintiff has stated that she was brought up and looked after by her grand mother Smt. Ganga Devi, which fact is no where mentioned in the plaint. Further more, plaintiff has failed to state the exact date, month or year when she was adopted by Sh. Bhagwan Dass. She had stated in her crossexamination that she had heard that a formal ceremony of adoption had taken place, but she has not revealed her source of this information. She has even not cared to examine any other family members who could depose before the Court that she was taken in adoption by Sh. Bhagwan Dass after the death of her natural parents. Plaintiff had admitted that there was no formal proof or written document, evidencing that she was the adopted daughter of Sh. Bhagwan Dass. She admitted in her crossexamination dated 15.04.2010 that there was no government record to prove that she was adoptive daughter of Sh. Bhagwan Dass. During her evidence, plaintiff was confronted with and suggested that she had forged the Ration Card Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 14 of 17of Sh. Bhagwan Dass in order to show that she was residing with him at the time of his death. It was the case of the defendants that the plaintiff had come to Delhi on demise of Sh. Bhagwan Dass and had started residing in his property, in order to grab the same unlawfully. A copy of order passed by Ld. ASJ, Delhi Sh. P. S. Sharma on 05.10.1988 was exhibited on the court file as document Ex. PW1/D1. In the said order, though the Judge has stated that there is no evidence that the plaintiff had committed forgery of the Ration Card, nevertheless, he has observed that plaintiff was drawing Ration on the name of a dead man despite being aware that it was illegal to do so.
21. Therefore, it was proved that there was concealment of material facts by the plaintiff. Plaintiff failed to lead any positive proof of the fact of her adoption by Sh. Bhagwan Dass. She did not elaborate on the customs or the ceremonies by which she was taken in adoption by Sh. Bhagwan Dass. She could not state as to who gave her in adoption to Sh. Bhagwan Dass. It was suggested to plaintiff that Sh. Bhagwan Dass was a minor at the time of her adoption and hence, her adoption could not have been valid, but this suggestion was not denied by the plaintiff. Rather, she stated that she was not aware of the age of Sh. Bhagwan Dass at the time of her adoption. Plaintiff could not state as to what was her age on the date of her adoption and claimed that she was a small child. She had stated that she had only heard of her Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 15 of 17adoption and this statement, itself proved that the plaintiff was not sure of the fact of her adoption. Hence, there is no evidence on record to suggest that the plaintiff was formally taken in adoption by Sh. Bhagwan Dass after the death of her parents and therefore, plaintiff has failed to prove that she is entitled to inherit his property after his demise.
22. It is admitted that defendant no. 2 is in possession of the suit premises and is running his business from the said premises. Plaintiff had stated that the defendant no. 2 was in possession of the property since 1987. She had claimed that she had made a complaint against the defendant no. 2 with the police but she has not filed a copy of the complaint showing that she had objected against his possession of the suit property. Plaintiff has failed to prove that she has any propriety rights in the suit property. On the other hand, defendant no. 2 is claiming title in the property through the defendant nos. 3 and 4, who have sold the property to him on the strength of a Will of Sh. Bhagwan Dass dt. 18.10.1985. This Will was once held to be genuine vide orders of the District Judge, Delhi vide orders dt. 02.08.1988, however, upon the application of the plaintiff, this order was setaside and the document was held to be unreliable. Nevertheless, the series of events reflect that the defendant no. 2 had obtained possession in lawful manner. The plaintiff on the other hand, does not have any Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 16 of 17right in the suit property and therefore, she is not entitled to recover possession of the same from the defendant no. 2 in the facts and circumstances of the case. The relief of possession and Permanent Injunction is accordingly not made out in the suit against the defendant no. 2.
23. Resultantly, plaintiff has failed to prove that she is entitled to the relief of declaration and therefore, the consequential relief of Permanent Injunction against the remaining defendants is also denied. Issues are decided against the plaintiff.
ISSUE NO. 524. In the cross examination of plaintiff dt. 15.04.2010, she has admitted that the property has a value of more than one crore at present. However, there is no suggestion to this witness that similar was the value on the date of filing of the suit. Accordingly, issue is decided against the defendants.
ISSUE NO. 625. No evidence is led by the defendant no. 5 to prove the said issue. Accordingly, the said issue is decided against the defendant no.
5. RELIEF
26. In view of my findings as stated above, suit of the plaintiff Suit No. 179/14 Nirmla Devi Vs DDA & Ors.
Page No. 17 of 17is dismissed leaving parties to bear their own costs.
27. Decree sheet be prepared accordingly.
Announced in the Open Court (CHHAVI KAPOOR)
today on 15th of July, 2016 Civil Judge06/West
Tis Hazari Courts, Delhi
This judgment contains 17 pages and all the pages are signed by me.
(CHHAVI KAPOOR)
Civil Judge06/West
Tis Hazari Courts, Delhi
Suit No. 179/14 Nirmla Devi Vs DDA & Ors.