Delhi District Court
Sh. P.S. Mahajan & Ors vs Sh. Onkar Saroop Mahajan on 1 July, 2010
1
In the court of Ashwani Sarpal, Addl. District Judge-05,
West District, Tis Hazari Court Delhi.
Sh. P.S. Mahajan & Ors.
-----------Appellants/Defendants
vs.
Sh. Onkar Saroop Mahajan
--------------Respondent/Plaintiff
(RCA no. 12/2010)
Date of institution--22-4-2010
Date of decision------1-7-2010
(Appeal u/s 96 CPC against judgment and decree
dated 31-3-2010 passed in suit no. 386/06/87)
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JUDGMENT:-
Ld. Civil Judge-02 North District, vide his judgment and decree dated 31-3-2010 partly decreed the suit bearing no. 386/06/87 for declaration, recovery of possession and damages instituted by respondent (herein after referred to as plaintiff) against appellants (herein after referred to as defendants) against which the present appeal has been filed. Ld. Civil Judge has allowed the prayer of plaintiff regarding recovery of possession of two rooms set on ground floor and two rooms set on the first floor which includes bathrooms, stores, kitchens, open space etc. as shown red in the site plan (herein after referred to as suit property) situated in property no. D-E/73, Tagore Garden, Delhi (herein after referred to as property in question) but rejected his claim of damages. Plaintiff in this appeal also filed cross objections and challenged that portion of decree by which he was not allowed the relief of damages. I have heard counsel for both the parties and gone through the trial court record as well as case laws cited.
2The suit was instituted by plaintiff in the court on 20-4-1987 against his three real brothers. During pendency of the suit, Sh. B.S. Mahajan (defendant no. 3) expired and his legal heirs were brought on record. Before proceeding further, some of important facts which are not in dispute are described as under;
1) That father of parties Sh. G.D. Mahajan retired from services in the year 1964 and he expired on 11-11-1965.
2) That property in question i.e. plot bearing no. D-E/73, Tagore Garden, New Delhi was purchased in auction on 20-10-1963 and at that time, sum of Rs. 2,750/- was deposited with DDA as part of the consideration amount. (though there is a dispute whether this amount belonged to plaintiff or was given by father of parties out of earnest money received while selling Punjabi Bagh property)
3) That balance consideration amount of Rs. 8,260/- was deposited on 11-2-1964 with DDA and perpetual lease deed was executed on 1-6-1964 in favour of plaintiff in respect of this property and possession letter was also issued in his favour. (though there is a dispute whether this amount belonged to plaintiff or was given by father of parties out of sale proceeds of Punjabi Bagh property)
4) That Sh. G.D. Mahajan, father of the parties had sold Punjabi Bagh property on 11-2-1964 by way of registered sale deed for Rs. 19,444.25 paisa whereas an agreement to sell of this property was entered into on 8-10-1963. He had received sum of Rs. 5,700/- as an earnest money through cheque and balance of Rs. 13,744.25 paisa in cash on the day of execution of sale deed. (though there is a dispute on which date earnest money of Rs. 5,700/- was received whether on 8-10-1963 or 18-10-1963)
5) That plaintiff earlier also filed a civil suit for permanent injunction bearing no. 36/84 against defendants no. 1 and 2 which was withdrawn by him unconditionally on 14-2-1984.
Plaintiff has taken a plea that property in question was purchased by him and he raised construction of Ground Floor on it from his own income and funds so it is his exclusive property whereas defendants have raised a dispute that it was purchased and constructed by their father for the benefit of all but title documents were got executed in favour of plaintiff and infact this property is a 3 Benami property. Thus the status of the property in question whether self acquired property of the plaintiff or Benami property has to be ascertained. Another dispute between the parties is whether plaintiff allowed defendants to live in the property in question as a licencee or defendants occupied the same under their own rights virtually being the co-owners. There is also a dispute whether the construction of First Floor and Barsati Floor on the property in question was raised by the plaintiff after taking interest free loan of Rs. 10,000/- each from defendants no. 1 and 2 as well as from his own funds or defendants contributed this amount for raising such construction in the capacity of being co-owners along with plaintiff. These are the main dispute between the parties and other disputes are infact are connected and related to these in one way or another. Defendants are very much mainly relying upon some letters written by plaintiff Ex. PW1/D1 to D7 and agreements in the nature of family settlement cum partition deeds Ex. D1 dated 31-10-1983 and Ex. D3 dated 19-4-1985 and portion wise site plan prepared by plaintiff himself dated 20-6-1985 which is Ex. D2.
Ld. Civil Judge on basis of pleadings had framed following six issues no. 1 to 6 on 16-1-1989 and thereafter additional issues no. 7 and 8 were also framed on 18-12-1995 and 20-11-2000 respectively as under;
1) Whether the defendants are co-owners of the property in dispute? OPD
2) Whether the defendants contributed jointly for the construction of first floor and Barsati floor of the property in dispute? OPD
3) Whether the property in dispute was partitioned by the settlement cum partition deed dated 19-4-1985 and defendants were exclusive owners in their portions? OPD
4) Whether the defendants have become owner by adverse possession as alleged? OPD
5) Whether the plaintiff is entitled to the damages? if so at what rate and at what amount? OPP
6) Relief.
7) Whether the cheque for Rs. 5,700/- was recovered by the father of the parties on 8-10-1963? OPD
8) Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 4 In order to prove his case, plaintiff examined himself only as PW-1 though he submitted a long list of witnesses proposed to be examined whereas on behalf of defendants, total 9 witnesses appeared in the witness box. Ld. Trial Court after considering the evidence partly decreed the suit and now before this court, appeal of defendants and cross objections of plaintiff have come on record. The points argued before this court are being dealt with as under one by one.
(A) BAR OF ORDER 2 RULE 2 & ORDER 23 RULE 1 CPC WHETHER APPLICABLE?:-
Plaintiff earlier filed a civil suit for permanent injunction bearing no. 36/84 against defendants on 19-1-1984 for restraining them from dispossessing him from the property in question. Copy of plaint of this suit is Ex. PW1/D8. This suit was withdrawn by plaintiff unconditionally on 14-2- 1984.
Counsel for plaintiff relied upon case laws Inacio Martins vs. Narayan Hari Naik AIR 1993 Supreme Court 1756, Mahammad Sanoorwar Ali vs. Asman Ali AIR 1989 Gauhati 71 and Sri Chinnappa vs. Corporation of the City of Banglore AIR 2005 Karnataka 70 which says that subsequent suit not barred if cause of action is distinct. After considering the plaint of earlier suit as well as of the present suit, I am of the view that the present suit for recovery of possession and damages is not hit by Order 2 Rule 2 Or Order 23 Rule 1 CPC as causes of action for both the suits are different and relief claimed is also different and thus present suit was maintainable. The argument of defendants that plaintiff was required to seek relief of declaration and possession in earlier suit for injunction is not acceptable due to existence of different causes of action. This submission raised on behalf of defendants is accordingly rejected.
(B) QUESTION OF JURISDICTION (ISSUE NO. 8) :-
Defendants have placed on record copies of notifications issued under Punjab Courts Act/RTI replies submitted by office of District Judge Delhi which shows that in the year 1987, Civil Judge had pecuniary jurisdiction to try those cases only where the valuation of the suit was less then Rs. 25,000/- because the jurisdiction of Civil Judge was enhanced to Rs. 25,000/- vide notification dated 17-11-1992. This pecuniary jurisdiction of the court of Civil Judge was lateron further enhanced from Rs. 25,000/- to Rs. 1 5 lakh vide notification dated 18-12-1992 and then to present jurisdiction of Rs. 3 lakhs vide notification dated 19-3-2002.
There is no dispute of the legal proposition that to seek possession of immovable property from defendant being an unauthorized occupant, plaintiff has to tell the market value of that property as on the date of filing of suit and have to pay advolrem court fee on that amount under section 7 (v) (e) of Court Fees Act. If the provisions of Suit Valuation Act are read along with this provision, then the market value of the suit property determined under Court Fees Act is to be taken as the value of suit for purpose of pecuniary jurisdiction of the court. In possession suit, the valuation of suit for purpose of court fee and jurisdiction remains same i.e. at the market value of suit property. It is also necessary that suit must be tried by the court having pecuniary jurisdiction otherwise decree passed shall be a nullity in the eyes of law.
In the present suit, plaintiff initially valued the suit for purpose of court fee and jurisdiction in respect of relief of possession at Rs. 9,600/- but lateron it was enhanced to Rs. 72,000/- after amendment of written statement of defendants was allowed on 21-10-2000. Plaintiff valued the suit property at Rs. 72,000/- in respect of two rooms set on the ground floor and two rooms set on the first floor of the property in question which includes bathrooms, stores, kitchens, open space etc. Defendants got their written statement amended vide order dated 21-10-2000 and challenged the valuation of the suit by alleging that the market value of suit property was not less then Rs. 6 lakhs even on the date of institution of the suit. If paragraph no. 29 of the amended written statement is read in true sense, then it can be said that defendants have not only disputed the correctness of the amount of the court fees but also virtually pecuniary jurisdiction of court to try the suit. Court has to see the intention of the parties behind their pleadings and not to be confused over wordings used. The wordings of paragraph no. 29 of amended written statement may on the plain meaning leads to the inference that only correctness of court fee amount is challenged but actually the pecuniary jurisdiction of the court was also disputed. Otherwise also it was for the court to see whether it has jurisdiction to try the suit or not. As per law, if any amendment of the pleading is permitted by the court then that takes effect from the initial date of filing of that pleading and not on any subsequent date when amendment application is allowed. It cannot be held in such situation that the objection of pecuniary jurisdiction of the court is liable to be rejected as the same was not taken at the first instance 6 in original written statement. This objection is deemed to have been taken on the date of filing of original written statement by the defendants due to subsequently allowing of their amendment application. Similarly changing of valuation from Rs. 9,600/- to Rs. 72,000/- by the plaintiff would also take place on the date when the suit was instituted in the year 1987. When defendants have taken an objection in their amended written statement regarding incorrectness of the value of the suit for purpose of court fees by stating that it was about Rs. 6 lakhs then it can be automatically said that an objection regarding valuation of suit for purpose of pecuniary jurisdiction was also taken.
Since question has arisen about the valuation of the suit property so in order to ascertain the same, court has to see firstly the market value of it as on the date of institution of the suit i.e. 20-4-1987. Plaintiff PW-1 is claiming this valuation at Rs. 72,000/- but he has not brought on record any document to show the same. Even in his own evidence he has not stated anything about it. How, in which manner and on what basis, he fixed the market value of the suit property on the date of institution of the suit at Rs. 72,000/- has remained unexplainable. Plaintiff in his list of witnesses had named Sh. M.N. Mahtani, valuer but has not examined him. Due to non examination of material witness who could tell the market value of the suit property and can oppose the report of valuer examined by defendants, an adverse inference has to be taken against plaintiff. Plaintiff knew since beginning that he was required to prove the market value of the suit property in order to show that his suit was filed before competent court having pecuniary jurisdiction and valuation of suit given by him was correct but he did not took any steps to justify the market value of suit property at Rs. 72,000/- as alleged. Non examination of material witness goes against him.
On the other hand, defendants examined two witnesses to prove that market value of the suit property as on the date of institution of the suit was more than Rs. 6 lakhs. DW-9 is a registered valuer whose report Ex. DW9/1 shows that market value of the suit property in possession of defendants was more than Rs. 6.5 lakhs as on 1-4-1987. This report gives a detail how and on which basis, valuation was ascertained besides giving breakup of cost of land and construction. Area, location, extent and nature of construction of suit property as well as facilities available in the building and adjoining locality etc. were discussed in detail in his report. Contents of this report point out that valuation was done by DW-9 after personal physical 7 inspection of the suit property. DW-9 retired from post of Executive Engineer from Delhi Jal Board in the year 1991. There is no dispute of the fact that Delhi Jal Board (DJB) was earlier a part of Municipal Corporation of Delhi (MCD). DW-9 being a civil engineer was duly approved to work as registered valuer after his retirement by competent authority. His detailed report Ex. DW9/1 cannot be brushed aside lightly which has been done by ld. Trial Court. He might have been paid by defendants for his professional services but this fact itself is not sufficient to reject his report as biased, favourable, procured or tainted especially when plaintiff in order to controvert this report has not brought on record any other evidence to contrary or any counter report of his own valuer. The findings of ld. Trial Court that this witness was incompetent to give valuation of the suit property as on 1-4-1987 when he himself started doing work of valuation in the year 1991 after his retirement is totally wrong and perverse as ld. Trial Court forgot to see his experience of decades in govt. agency and his qualification. There is no legal bar that an experienced and competent valuer/expert cannot give the valuation of the period prior to his starting of the work of valuation. No rule or guidelines have been produced by the plaintiff to show that valuer can give report only of those properties which have been constructed or purchased after the date of issue of license to him. If there is no bar for an advocate after getting license from Bar Council to start taking cases even of the period instituted prior to the date of his enrolment as an advocate then on the same reasoning, a valuer can also give valuation report of the property constructed or purchased prior to date of his obtaining license from the govt. The argument advanced by counsel for plaintiff that this witness retired from DJB where no work of valuation of building etc. is normally done is without any force as this witness though had retired from DJB but he had joined the services of MCD where frequently duties of valuation etc. are assigned to civil engineer. This witness DW-9 also deposed that during his posting in MCD he evaluated number of properties for purpose of recommending fixation of rent and this fact leads to the inference that he had lot of experience in this regard. Ld. Trial Court ignored his status, qualification, knowledge and experience and rejected his evidence by wrongly presuming that he had no professional and special qualifications to become an expert. DJB was separated lateron from MCD and became an independent agency so mere retirement of DW-9 from DJB itself is not a disqualification for him from becoming a valuer. This witness in his report has given reasons, figures, data and material how he determined the valuation of the suit property 8 at a particular amount and those reasons and material etc. were not virtually challenged or controverted in his cross examination in detail on each and every point as well as by brining on record another contradictory report of some another valuer so report of DW-9 deserves to be accepted being reliable and correct. The findings of ld. Trial Court that his report without any substantive evidence is liable to be discarded is not a correct approach.
Ld. Trial Court while considering this issue had also taken contradictory stands and was under lot of confusion. On one hand, it is saying that report of this witness DW-9 may be correct but at the same time is stating that it cannot be treated as gospel truth in absence of supportive evidence. At another place, ld. Trial Court stated that real value of suit property may be in between Rs. 72,000/- as alleged by plaintiff and Rs. 6 lakhs as stated by defendants which point out that ld. Trial Court was itself not fully sure whether it had pecuniary jurisdiction to try the case or not. Even if the market value of the suit property is taken exactly in between of these two figures as stated by ld. Trial Court, then also, it could have been more then Rs. 3 lakhs even on the date of disposal of the suit. The possibility of market value at Rs. 2 lakhs or Rs. 4 lakhs or any other figure also can not be ruled out from this opinion of ld. Trial Court which point out that the findings of ld. Trial Court were not conclusive and ascertainable. The preponderance of probabilities regarding the market value of the suit property is in favour of defendants in absence of any evidence of plaintiff. In such situation, in absence of any other contrary evidence produced by the plaintiff, this court has to rely upon the evidence of DW-9 and to treat his report Ex. DW9/1 as correct. Thus the market value of the suit property even on the date of filing of suit is held to be more then Rs. 6 lakhs.
Valuation report submitted by DW-9 cannot be rejected simply on the ground that before starting inspection of the suit property he had not given any notice to the plaintiff. Law does not require giving of any such prior notice to all parties before inspection of the premises by an expert or valuer. When this witness stepped into the witness box and dared to face the cross examination of plaintiff, then his statement as well as his report has to be relied upon as correct and genuine. Non production of rough notes prepared at the spot by this witness at the time of inspection is not sufficient to reject his testimony when his detailed report is not impeached on different aspects nor any counter report of any other valuer is brought on record by the plaintiff. The correctness of facts regarding area, size, measurements, location, facilities, 9 nature of construction, rates etc. as disclosed in the report of this witness were not disputed specifically in the cross examination of DW-9 by plaintiff one by one so in such circumstances non production of rough notes prepared at spot becomes immaterial. The version of DW-9 that he had destroyed those rough notes after preparation of final report cannot be disbelieved. It cannot be held that rough notes were not produced intentionally as those were contradictory to the final report.
Plaintiff relied upon the rateable value of Rs. 1510/- of the property in question determined by MCD for purpose of assessment of house tax in the year 1965-66 which is Ex. PW1/20. However DW-9 stated that this rateable value is fixed on the basis of cost of land and cost of construction at the time of starting of construction. In this case, land was purchased in the year 1964 and construction of ground floor was completed in the year 1965. Thus the ratable value of the property in the year 1965 cannot be held as true market value of the property in the year 1987 after gap of 22 years as prices increases day by day. Moreover this rateable value on the face of it is totally incorrect because the price of property in question purchased in auction was Rs. 11,000/- in year 1963 and as per plaintiff he had spent more then Rs. 17,000/- on its construction in the year 1964. The court has to see the market value on the date of institution of the suit and not ratable value of 22 years old which was done only purpose of calculation of house tax. Thus this document does not help plaintiff in any manner in ascertaining the market value of the suit property.
There was one plot bearing no. FD-12, Tagore Garden situated just at the distance of ½ k.m. from the suit property which was auctioned at rate of Rs. 5,030/-per sq. meter on 6-6-1988 after about 14 months of the date of institution of the suit. DW-8 from DDA produced the record of this auction. DW-9 also relied upon this auction rate while calculating the market value of the suit property. The judicial notice of the fact that prices of land increased from time to time also can be taken. Even if some offloading to say @ 10% to 20% is given in respect of plot no. FD-12, Tagore Garden for a period of 14 months back, then also the rate at which this plot could have been sold on the date of institution of suit can be taken into consideration to determine the market value of the suit property as on the date of filing of the suit which would certainly be more then Rs. 3 lakhs in all circumstances. Thus the plaintiff cannot get any benefit of old rateable value of the suit property nor can be held it sufficient to counter the latest market valuation of the same as given 10 in report Ex. DW9/1. Even if from the cross examination of the witness DW-9, some facts such as non inspection of some portions in possession of plaintiff, non disclosure of nature of foundation and material used in it, non disclosing of exact number of beams and columns, non considering of sale documents of other properties situated adjacent to suit property etc. goes in favour of plaintiff but that itself are not sufficient to reject his testimony and report as a whole especially when plaintiff has not brought his own specifically named valuer in the witness box.
In view of the above findings, there is no hesitation to say that ld. Trial Court was wrong in giving opinion that it had pecuniary jurisdiction to try the suit and the valuation fixed by the plaintiff for purpose of court fee and jurisdiction was correct. The findings of ld. Trial Court on issue no. 8 is thus set aside and it is held that ld. Civil Judge had no pecuniary jurisdiction to try the suit even on the date of institution as well as on the date of decision. The judgment and decree passed by ld. Trial Court which had no jurisdiction to try the suit is illegal and nullity in the eyes of law. Plaintiff had given wrong and incorrect valuation of the suit property initially at Rs. 9,600/- and subsequently at Rs. 72,000/- for purpose of court fee and jurisdiction in respect of relief of possession. The market value of the suit property could not have been less then Rs. 6 lakhs in any circumstances even on the date of institution of the suit. The case law cited on behalf of plaintiff Rajiv Lochan vs. Narender Nath 2003 VI AD (Delhi) 152 is on different issue and not relevant to this controversy as this judgment deals with the question of power of review of order by successor court which was inferior in grade due to change of pecuniary jurisdiction of court.
The objection of valuation was taken by the defendants though subsequently by getting their written statement amended in the year 2000 but that objection shall deem to have been taken at the first instance due to allowing of amendment application. Since ld. Civil Judge had no pecuniary jurisdiction to try the suit since beginning so decree passed by it is a nullity and cannot be enforced and thus is set aside. In my view the objection regarding pecuniary jurisdiction of the court can be raised at any stage though objection regarding territorial jurisdiction is required to be raised at first instance. The another opinion of ld. Trial Court that after long trial of 23 years, it is not justified to dismiss the suit only on ground of lack of jurisdiction is also not correct. Long trial does not authorize court to pass a decree when it has no jurisdiction to pass the same. Otherwise also, plaintiff has also to be 11 blamed for allowing the case to proceed further by opposing the request of defendants to treat this issue of jurisdiction as preliminary issue. The findings of ld. Trial Court on issue no. 8 are thus set aside and this issue has to be decided in favour of defendants. In such circumstances, the present appeal deserves to be allowed on this issue only but I still deem it proper to deal with other issues on merits also.
(C) GROUND OF ADVERSE POSSESSION RAISED BY DEFENDANTS (ISSUE NO. 4) :-
Defendants in their written statement have taken a plea of becoming owners by way of adverse possession. On this plea, a specific issue was also framed. However they at final argument stage withdrew this plea but still ld. Trial Court discussed this issue in detail. When this objection was withdrawn by the defendants, then ld. Trial Court was not required to deal with this issue but it was to be dropped. Otherwise also record shows that this plea of adverse possession was taken not as substantive plea but as an alternative defence plea without unconditionally accepting the plaintiff as an exclusive owner of the suit property. Case laws cited by counsel for plaintiff Harbans Kaur vs. Bhola Nath 1995 I AD (Delhi) 272 and Smt. Rama Kant Jain vs. M.S. Jain AIR 1991 Delhi 281 in which it is held that by taking plea of adverse possession, a party infact admits ownership of another are not applicable to the present facts and circumstances of the case as this plea of adverse possession was taken by defendants in alternative and was lateron withdrawn. On the other hand, defendants are able to fully prove even from the documents of plaintiff (discussed below) that they were infact co-owners of the property in question and it was a Benami property.
(D) STATUS OF PROPERTY IN QUESTION WHETHER BENAMI PROPERTY, WHO RAISED CONSTRUCTION AND SOURCE OF MONEY ETC. (ISSUES NO.
1, 2, 3, 7):-
These four issues are interconnected. Case of the plaintiff is that property in question belongs to him exclusively as it was purchased and constructed by him from his own income and funds whereas case of the defendants is that it was purchased Benami by father of parties by his money for the benefit of all brothers though it was purchased in the name of plaintiff. According to defendants, Ground Floor of property in question was also constructed from the funds of father whereas First Floor and Barsati Floor was 12 constructed by them. Defendants are mainly relying upon the family settlements and admissions of the plaintiff made in some letters in this regard.
The provisions and restrictions of The Benami Transaction (Prohibition) Act, 1988 are not applicable to the present proceedings being having no retrospective effect as this suit was instituted much prior to the date of coming into force of this Act. In this regard, law is well settled as per judgment of Supreme Court given in case R. Rajagopal Reddy vs. Padmini Chandrasekharan JT 1995 (2) SC 667 and Rajappa Hanamantha vs. Sri Mahadev Channabasappa 2000 V AD (SC) 345.
There are following six ingredients to guide the nature of transaction as Benami as per law settled by Supreme Court given in case Villiammal vs. Subramaniam (2004) 7 SCC 233;
(1) The source from which the purchase money came;
(2) The nature and possession of the property after the purchase; (3) Motive, if any, for giving the transaction a benami colour; (4) The position of the parties and the relationship, if any, between the claimant and the alleged benamidar;
(5) The custody of the title deeds after the same;
(6) The conduct of the parties concerned in dealing with the property after the sale.
As per this judgment of Supreme Court, law presumes the purchaser to be the owner of the property purchased and onus to prove that he is not the real owner but a Benami holder lies on the person pleading so. Intention of the person who contributed the purchase money and the source from where the purchase money came are the most determining factors to ascertain the exact nature of the transaction. In the light of above proposition, the evidence led by parties is being discussed one by one as under;
(1) Source of money:- First of all source of purchase money for acquiring property in question has to be ascertained. Admittedly the property in question was purchased in an auction on 20-10-1963 (Sunday) and advance sum of Rs. 2,750/- was deposited on the same day with DDA whereas balance amount of Rs. 8,260/- was deposited on 11-2-1964. Plaintiff alleges that this amount of Rs. 2,750/- and Rs. 8,260/- belonged to him and was arranged by him whereas plea of defendants is that their father had sold one Punjabi Bagh 13 property for Rs. 19,444.25 paisa and had received advance amount of Rs. 5,700/- from purchaser on 8-10-1963 through cheque and balance amount of Rs. 13,744.25 paisa was received in cash on 11-2-1964. Defendants further stated that out of sum of Rs. 5,700/- and Rs. 13,744.25 paisa received by their father, an amounts of Rs. 2,750/- and Rs. 8,260/- were deposited with DDA for purchase of the property in question. Thus a dispute has to be solved whether the amount deposited at two occasions with DDA for purchase of property in question belonged to father of parties or to the plaintiff.
There is no dispute of the fact that Sh. G.D. Mahajan, father of parties had owned one plot in Punjabi Bagh area which was sold on 11-2-1964 vide sale deed Ex. PW1/D2 for consideration of Rs. 19,444.25 paisa. The contents of this sale deed reveal that he had entered into an agreement to sell of this plot on 18-10-1963 with the purchaser and sum of Rs. 5,700/- was received as an earnest money vide cheque dated 8-10-1963. A dispute has also been raised whether this advance payment was received on 8-10-1963 or on 18-10-1963. This fact is admitted by both the parties that in those days of year 1963, an encashment of cheque normally used to take place minimum 3-4 days after presentation.
Advance payment of Rs. 5,700/- was received by father of parties on 8-10-1963 through cheque as per averments made in the sale deed Ex. PW1/D2 and not on 18-10-1963. The plea raised by plaintiff that it was a typing mistake in the sale deed cannot be accepted as correct. He has not brought on record any evidence from concerned bank to show that the cheque was bearing infact date of 18-10-1963 and not 8-10-1963. No steps have been taken by plaintiff to get the sale deed rectified in respect of this alleged typing mistake. When a written document is available then no oral evidence can be permitted to change the contents of the same due to bar of section 91 of Indian Evidence Act. In this regard reliance can be placed upon the decision of our own High Court in case Hansalaya Properties vs. Dalmia Cement (Bharat) Ltd. 2008 (106) DRJ 820.
As per calendar of year 1963 placed on record, 18-10-1963 was a Friday and 19-10-1963 was a Saturday. As per plaintiff, on 19-10-1963 due to half day working in the bank and 20-10-1963 due to Sunday, cheque in question was presented on 21-10-1963 in bank which was Monday. This cheque was encashed only after 24 or 25-10-1963. Plaintiff could show by bringing on record evidence from the bank that payment of cheque of Rs. 5,700/- was received by his father only after 24 or 25-10-1963 and amount of 14 Rs. 2,750/- deposited with DDA on 20-10-1963 actually belonged to him but non production of any such proof regarding encashment of the cheque is fatal to the case of the plaintiff and fortifies the submission of defendants that the amount of Rs. 2,750/- was infact paid out of Rs. 5,700/- got by their father on 8-10-1963. On the other hand, the observations of ld. Trial Court that plaintiff could not satisfactorily prove that he had any money to purchase this property further support the case of the defendants that amount of Rs. 2,750/- deposited with DDA initially actually belonged to father of parties and not to the plaintiff. It is accordingly held that father of parties received Rs. 5,700/- on 8-10-1963 and not on 18-10-1963 as alleged by plaintiff. Ld. Trial Court did not consider these aspects while dealing with issue no. 7 and chosen not to deliberate upon it which cannot be considered as correct approach.
The plea taken by plaintiff that no one will give advance payment unless any written document is executed regarding sale transaction is not universally acceptable as correct. It is possible that advance payment was made firstly on 8-10-1963 and written document regarding agreement to sell was executed lateron on 18-10-1963. DW-1 had not seen that cheque of Rs. 5,700/- personally and had no personal knowledge about the exact date of its encashment as he was minor at that time but it is immaterial fact as plaintiff was taking a plea contrary to the written document and was himself required to prove the same in which he had failed.
Father of the parties had further received Rs. 13,744.25 paisa on 11-2-1964 from purchaser of Punjabi Bagh plot in cash. In respect of property in question, second installment of Rs. 8,260/- was deposited with DDA on the same day i.e. 11-2-1964 which leads to the inference this amount was a part of the amount got by father from the sale of Punjabi Bagh plot. Plaintiff tried to prove that he had made arrangements for making payments of both installments to DDA but Ld. Trial Court has given findings that plaintiff is unable to prove details of arrangements of money satisfactorily for the purpose of purchase of the property in question. These findings are not disputed or challenged by him even in his cross-objections filed in the present appeal and he virtually accepted these findings. Ld. Trial Court however has held that since he was the recorded owner so burden was not upon him to prove the source from where he arranged the money for purchase of suit property is not correct because here in this case, question of Benami property has arisen. Plaintiff was required to show that he had purchased this property from his 15 own sources and funds in which he failed and the observations made by ld. Trial Court in this regard are infact admitted by him.
Plaintiff had relied upon certificate of some Committees being run by Sh. B.R. Sood which is Ex. PW1/3 regarding receiving of total Rs. 4,800/- (Rs. 2400/- each on 1-10-1963 and thereafter in February 1964). This certificate issued by Sh. B.R. Sood is not proved as per law as the person who issued this certificate is not produced in the court. It is also not the case of the plaintiff that this witness has expired or is not available. This certificate issued on 9-12-1987 after 23-24 years of making payment even does not give any hint that any record was seen before issuing this certificate by Sh. B.R. Sood or he remembered this transaction personally. Thus non examination of Sh. B.R. Sood, author of the certificate Ex. PW1/3 despite being specifically named in the list of witnesses of the plaintiff is fatal to his case and it can be held that plaintiff has failed to prove the receipt of Rs. 4,800/- allegedly spent for purchasing the property in question.
Plaintiff also alleged facts regarding withdrawl of Rs. 500/- from post office vide pass book Ex. PW1/4. This pass book cannot be termed as public document to be considered without any formal proof. Plaintiff has not examined any witness from post office to establish the genuineness of this pass book as well as correctness of entries made in it. Accordingly this pass book cannot be relied upon without its proof as per law.
Plaintiff allegedly had received Rs. 13,500/- from his in laws which were kept by his wife. This amount allegedly was the savings of his wife being qualified tailor and consisted of her 'Shagun' received in marriage. Plaintiff has neither examined his wife nor any member of his in laws to prove that this amount belonged to his wife and was entrusted to them and she took it back lateron. Lateron in cross examination, PW-1 changed this amount from Rs. 13,500/- to Rs. 2,500/- only which leads to the inference that his version in this regard is incorrect and unreliable. Non examination of material witness draws an adverse inference against plaintiff when it is not the case of the plaintiff that these witnesses are not available.
As per PW-1, his wife also allegedly had sold some gold jewelry to Bunda Ram Saraf for Rs. 2,500/- after getting it weighted at Dharmkanta of Sh. Khairati Lal Bhalla who issued certificate Ex. PW1/5. Plaintiff has neither examined the concerned jeweler Bunda Ram Saraf nor Sh. Kairati Lal Bhalla to prove this certificate. This certificate Ex. PW1/5 was issued on 4-2-1988 after 24 years of alleged sale of jewelry. Nothing is disclosed in Ex. PW1/5 that Sh.
16Kairati Lal Bhalla had gone through any of his account books or record etc. before issuing this certificate or his memory was too sharp that he remembered everything even after 24 years what were the items of jewelry which were sold, what was its weight and how much amount was paid etc. As per this certificate Ex. PW1/5, jewelry was sold by father of Sh. Khairati Lal Bhalla to Bunda Ram Saraf but it is not alleged that Sh. Kairati Lal Bhalla himself was also present at the time of alleged sale of the same. According to statement of PW-1, his wife had sold jewelry but certificate shows that plaintiff had sold the same. Plaintiff has not examined his wife to prove that she had any such jewelry which was allegedly sold. Moreover it is admitted by PW-1 in cross examination that Sh. Kairati Lal Bhalla is in his relation which creates doubt also about the correctness of this certificate. In such circumstances, it is not possible for this court to rely upon this certificate. Plaintiff has failed to prove that he received Rs. 2,500/- from sale of jewelry.
PW-1 also stated that he had obtained sum of Rs. 2,500/- from Sh. J.C. Gupta, his brother in law (sister's husband) as loan which was returned. He relied upon some entries of his bank pass book Ex. PW1/26 but in this regard also there is no statement of brother in law Sh. J.C. Gupta who appeared in the witness box as DW-2 and denied giving of any loan to plaintiff.
Plaintiff also stated that his wife entered into some partnership business with defendant no. 1 which continued from 1978 to 1984 and she was getting income of Rs. 1,500/- per month from this business. However no record of income tax returns, account books, bank account etc. to prove such income of wife is brought on record by plaintiff. The earning of Rs. 400/- per month by wife of plaintiff prior to entering into partnership is also not proved by any documentary evidence or by way of examining wife in evidence by the plaintiff.
Most of documents relied upon by plaintiff are not properly proved as per law as the author of these documents is not examined nor the concerned official or relative examined who allegedly gave loan to the plaintiff so in this regard objection taken by defendants at the time of recording statement of PW-1 is liable to be upheld. Mere placing on record original documents itself is not sufficient to say that those are also proved as per law. Non taking of any plea of forgery of these documents by defendants does not exempt plaintiff from proving the same through primary or secondary means. Even if it is presumed that some of the original documents of plaintiff being more than 30 years old have to be treated as genuine and correct but still most 17 of the crucial documents such as Ex. PW1/3 and PW1/5 do not come in this category so were required to be proved in evidence. Accordingly in absence of examination of author of these documents, it cannot be read or considered in evidence. Otherwise also it is unbelievable that plaintiff who was getting salary of Rs. 250/- per month in the year 1963-64 would become member of committee after making contribution of Rs. 100/- per month when he had to support his own family, sisters, father as well as three minor defendants, and to spend money on their education besides making payment of installments of some loan amount taken from office.
Father of plaintiff retired from job in year 1964 and got some provident fund. He had purchased plots in Kiran Garden and Moti Nagar also on 23-10-1963 and 18-11-1964 respectively. The plea of the plaintiff that father had spent entire money on the purchase of these houses, for raising construction on it, for education of defendant no. 3 and to meet out other expenses as well as on marriage of daughters but has not incurred any money on purchase of Tagore Garden house in question cannot be believed when plaintiff himself has failed to prove that he had any source of money to purchase the same. Otherwise also no sufficient and reliable documentary evidence has been produced by plaintiff to show what amount father was having and what he spent on the purchase of these two plots of Kiran Garden and Moti Nagar and other connected expenses to these transactions.
DW-2 stated in his evidence that the cheque of earnest money of Rs. 5,700/- was received on 18-10-1963 by Sh. G.D. Mahajan but in this regard his version appears to be not correct when documentary evidence shows otherwise and plaintiff has failed to bring on record the evidence of concerned bank to prove the date of encashment of this cheque. Father of parties had purchased Kiran Garden house also on 23-10-1963. There is an admission on the part of the plaintiff that this Kiran Garden house was purchased from the advance amount of Rs. 5,700/- received due to sale of Punjabi Bagh property. Had the cheque of earnest money deposited on 21-10-1963 then it could not have been encashed before 24-10-1963 so there was no occasion to pay the sale consideration of Kiran Garden house on 23-10-1963 out of sale proceeds of Punjabi Bagh plot. Thus the theory of defendants that cheque of Rs. 5,700/- was given on 8-10-1963 and not on 18-10-1963 as alleged by plaintiff appears to be more reasonable and correct. In view of above findings, it is held that property in question was purchased from the funds of father of the parties out of amount received from sale of Punjabi Bagh property and plaintiff had not 18 incurred anything in purchasing the same. He was simply shown as owner of this property in papers whereas actually funds came from the father. The property in question is infact a Benami property.
Though there is some evidence on record which shows that plaintiff spent major amount in raising construction of Ground Floor of the property in question in the year 1964-65 and father only helped him to an extent of Rs. 1,000/- as admitted by PW-1 in his statement but even in that situation, plaintiff could claim reimbursement of construction expenses from defendants but simply from fact of raising construction of Ground Floor, he cannot be held as its exclusive owner. Property in question was infact purchased by father Benami for the benefit of all children and plaintiff cannot exclusively claim right over the same simply on the ground that in the record of DDA, he is the owner of the same. Construction of Ground Floor of property in question might have been raised by plaintiff substantially from his own money but it was not purchased from his own funds or savings. Mere fact that in the presence of DW-2, no money was paid by father to the plaintiff for purchase of property in question itself is not sufficient to believe that amount belonging to father was not utilized.
Plaintiff thus has failed to prove that he had enough money in hand to purchase the Tagore Garden property in question. On the other hand, the evidence point out that money was available with the father of the parties which he got from the sale of Punjabi Bagh property. The dates of receipt of money by father from sale of Punjabi Bagh property if are correlated with the dates of deposit of money in two installments with DDA in respect of purchase of the property in question then it clearly leads to the inference that it was the money belonging to father which was used to purchase this Tagore Garden property in question. In such circumstances there is no hesitation to say that the property in question was purchased by father of parties Benami in the name of plaintiff but it was meant to be for use and benefit of all children. Plaintiff in such situation cannot be held as exclusive owner of the same even though it is in his name in the official record.
(2) Nature and possession of property after purchase:- According to plaintiff PW-1, after purchasing the plot in question, he had started construction of Ground Floor in December, 1964 which was completed in June, 1965. Plaintiff is also alleging that thereafter First Floor was constructed in the year 1983-84 with his own funds and savings.
19It has already come on record that construction of Ground Floor was not exclusively done by plaintiff from his own funds and some contribution was made by father also in raising construction. This fact is admitted by plaintiff in his statement that his father had given only Rs. 1000/- for purpose of construction of Ground Floor which was never returned to him. DW-1 also stated in his statement that Ground Floor was constructed by plaintiff and his father jointly and plaintiff had obtained loan of Rs. 10,000/- from govt. for raising construction of Ground Floor. In the year 1964-65, defendants were minor and students and admittedly had not contributed anything in raising construction of Ground Floor. No doubt plaintiff infact had incurred substantial amount in raising construction of Ground Floor from his own funds but in respect of First Floor construction, he could not prove that he had arranged money for this purpose and nothing was done by defendants whereas it is a fact that First floor was constructed by defendants and not by plaintiff alone. Plaintiff also could not prove any document regarding purchase of building material used for constructing First Floor. Though DW-4 produced record of some GPF withdrawl of plaintiff for purpose of raising construction in the year 1985 but plaintiff has failed to prove that he spent this amount only on construction of the property in question. On the other hand some letters written by plaintiff which are being considered in later part of this judgment point out that defendants no. 1 and 2 also contributed in raising construction of First Floor by making substantial payment in joint pool and lateron they themselves completed construction of First Floor after the joint pool money was exhausted. The raising of construction of First Floor by plaintiff exclusively from his own funds and money as alleged is infact a false fact.
The raising of initial construction of Ground Floor only will not give any special concession to the plaintiff and will not make property in question out of the purview of Benami property. However he had got the benefit of the same as he got two portions in excess of others due to this reason. Even if it is presumed for the sake of arguments that plaintiff is an exclusive owner of the property in question but he admittedly allowed defendants to live in the suit property for a period of 1½ years till 20-4-1985 as stated and also permitted them to raise construction of permanent nature. Defendants were allowed to raise construction by plaintiff after depositing Rs. 10,000/- each in the joint bank account. From the letters written by plaintiff (discussed below), it is clear that this deposit of Rs. 10,000/- was not a loan transaction but was to be spent towards construction of First and Barsati floor. In that situation, 20 provision of section 60 of Easement Act comes in favour of defendants and they cannot be now thrown away from the suit property by the plaintiff. When plaintiff was allegedly claiming himself to be an exclusive owner of the suit property then why he permitted defendants to raise construction of permanent nature in his property has remained unexplainable. Even if defendants are presumed to be licencee of the plaintiff, then also they cannot be dispossessed from the suit property now due to bar of section 60 of Easement Act as plaintiff had permitted them to raise construction of permanent nature on the property in question. Not only this, letters of plaintiff Ex. PW1/D1 to D7 (discussed below in detail) also shows that he himself actively participated along with defendants in raising construction after withdrawing money from joint account contributed by all. After the money lying in the bank was exhausted, then defendants started spending money from their own pocket to complete the construction as is revealed from those letters and plaintiff infact wanted the defendants to go on with construction with their own expenses and material. Defendants as per orders of the court dated 21-4-2001 were permitted to raise this legal ground of bar of section 60 of Easement Act at the time of final arguments when their amendment application to incorporate this plea in their written statement was rejected. As in the agreement Ex. D3 (which is held to be genuinely executed by plaintiff below) no condition was imposed in respect of raising construction by the defendant so they are not debarred from taking this plea of defence. Moreover there is no necessity that license should be in writing before applying principle of section 60 of Easement Act. Plaintiff himself is admitting that there was no written license deed. Lahore High Court in Jagat Singh vs. District Board, Amritsar AIR 1940 Lahore 509 held that licensee if had executed a work of permanent character with permission of licensor, then his license cannot be revoked even on payment of compensation. In such situation, even if defendants are treated as licensee for the sake of arguments, then also they cannot be dispossessed due to bar of section 60 of Easement Act. Finding of ld. Trial Court that plaintiff had permitted defendants to live in the suit property temporarily is without any evidence whereas it is fact that he permitted them to live in their respective portions after formal partition of the property in question as per agreements and site plan Ex. D1 to D3.
In paragraph no. 12 of the plaint, plaintiff has stated that in the month of October, 1983 defendants had requested him to allow them to stay in the suit property for further period of 1½ years till 20-4-1985. PW-1 also stated in his examination in chief that in December, 1985 he gave possession of 21 rooms and kitchen on first floor to defendants no. 1 and 3 and to defendant no. 2 on ground floor. The conduct of the plaintiff permitting defendants no. 1 to 3 to live in the suit property even after December, 1985 despite their alleged earlier assurance to vacate the same on 20-4-1985 also leads to the inference that plaintiff never treated the suit property as his individual exclusive property and accepted the same as joint family property. Even if for the sake of arguments it is presumed that plaintiff is exclusive owner of the suit property then also he is now not permitted to take back possession of the suit property from defendants due to principles of estoppel in view of his own admissions made in the agreements and his own letters as well as due to bar of section 60 of Easement Act. Plaintiff is otherwise also due to execution of agreements in the nature of family settlement as well as by writing letters is estopped to claim exclusive ownership of the suit property and to seek recovery of possession.
Counsel for plaintiff further raised a point that no construction work had taken place on back of First Floor and there is no Barsati Floor till date which means that defendants had no intention to comply with the terms of settlement Ex. D3. DW-2 also admitted that full construction as shown in the site plan does not exist at the site. He further stated that First Floor which is in possession of defendant no. 1 and 3 is not correctly shown in the site plan but parties are in possession of their respective shares as per family settlement Ex. D1. On the other hand counsel for defendants stated that constructions could not have been completed as disputes have started and plaintiff had instituted the present proceedings and thus himself wanted to back out from the agreement. This submission appears to be convincing and acceptable. As per the family settlement agreements Ex. D1 and D3 read with plan Ex. D2, parties have to construct and live in respective portions. If any construction is not raised by anyone then that does not mean that settlement had breached. Particular party who wants to live can raise construction in the space assigned to him. Even if any particular defendant is not residing in the portion allotted to him itself is not sufficient to presume that he is not pressing his claim over the portion given to him. Physical living in respective portion was not a condition precedent for conferring right of ownership under the agreement. Defendants on basis of agreements admittedly had not applied to DDA for mutation in their favour in respect of their respective shares in the property. I am also of the view that defendants had no sufficient time before filing of this suit after execution of family settlement to apply for mutation. Otherwise also 22 deposition of DW-1 that due to good relation, there was no necessity to apply for mutation earlier cannot be disbelieved.
Accordingly it is held after keeping in view the nature, possession and construction raised in the property in question that plaintiff never treated this property as his exclusive property but treated it as a joint family property.
(3) Motive to give transaction a Benami colour:- Plaintiff has admitted in his cross examination that father had gone with him at the time of auction of the property in question. DW-2 in his statement also specifically stated that property was purchased in the name of plaintiff by father for the benefit of joint family so that loan could be raised on it for construction purposes. Statement of DW-2 being brother in law of parties cannot be rejected as he was also having cordial relations with the plaintiff and had no motive to depose falsely. This fact is also not in dispute that defendants were minor at the time of purchase of the property in year 1963 whereas plaintiff was major and was a govt. employee who could easily get loan for construction. Father of parties retired in year 1964 and he was not entitled for any pension. Obtaining loan by retired father having no source of income would have been very difficult. The version of DW-1 that property was purchased by father in the name of plaintiff so that loan could be obtained from govt. for raising construction appears to be more convincing and reliable. PW-1 also admitted in his statement that anybody who holds land was entitled to get loan for construction from DDA and he had done the same. Thus this motive on the part of father of parties also point out that nature of property in question was a joint family property and infact a Benami property.
(4) The relationship of parties:- Parties admittedly are real brothers. At the time of purchase of property in question, all defendants were minors and school going students. Plaintiff in paragraph no. 3 of his earlier suit for permanent injunction Ex. PW1/D8 has stated that immediately after completion of construction, defendants and their parents along with plaintiff started living in the property in question. The construction of Ground Floor was allegedly completed by plaintiff in the June, 1965 as stated by him in his examination in chief. As per contents of suit filed by plaintiff Ex. PW1/D8, plaintiff, his father and defendants had shifted to property in question in the June, 1965 itself. However in his statement given in court, he alleged that he alone with his family shifted to the property in question. Death of father took 23 place on 11-11-1965 after shifting to Tagore Garden house in question. Findings of ld. Trial Court that father died prior to date of construction of the suit property is not correct but is against the own admission of the plaintiff. From 1965 till the dispute arose in the year 1982-83, there is no evidence on record to point out that plaintiff ever treated defendants as his licensee. Admittedly defendants after becoming major had already settled in their lives and conduct of plaintiff in keeping silence for such a long period till dispute arose leads to the inference that plaintiff always treated the property as belonging to all brothers and after 1982-83 his intention become bad to grab the shares of other brothers also by taking benefit of the fact that it was in his name in the record of the govt. and on papers. On the other hand, incurring all expenses by father of the parties in purchasing the property in question in the name of plaintiff Benami clearly shows that father wanted the same to be used by all his children. The close relationship between the parties support the case of defendants regarding the status of property in question as Benami property.
(5) Custody of title deeds:- There is no dispute of the fact that in the year 1963 when the property in question was purchased, all the defendants were minor and school going students. Plaintiff and his father were the only major male members in the family. Property in question was purchased in the name of plaintiff and he was required to complete necessary formalities regarding execution of perpetual lease deed, get the plan approved for construction, obtaining of loan from govt. on this property etc. Hence in such situation, handing over documents of title to the plaintiff by father was a natural and reasonable conduct. However simple custody of title deeds itself is not sufficient to treat plaintiff as an exclusive owner of the property in question when other factors including his conduct discussed below clearly point out that it was a Benami property purchased by father for the benefit of all his children.
(6) Conduct of parties:- The conduct of parties especially after dispute arose in year 1982-83 in entering into agreements in the nature of family settlement and partition are very material to determine the exact nature of the property in question.
Family settlement takes place if there is pre-existing right or ownership as held in case Kale vs. Dy. Director of Consolidation (1976) 3 SCC 119. It is further held in this judgment by Supreme Court that courts should lean in favour of family settlement made honestly after overlooking 24 technical or trivial grounds. Rule of estoppels is pressed into service to prevent unsettling of settled disputes. Such family settlement need not be compulsorily registered. In another matter Hari Shankar Singhania vs. Gaur Hari Singhania 2006 (88) DRJ 1 (SC) Supreme Court again considered the admissibility of document of the nature of family settlement by holding that rule of estoppel should be applied in case of legal lacuna or a formal defect as such document is treated differently from any other formal commercial settlement as such settlement in the eyes of law ensures peace and goodwill amount the family members. Such family settlements generally meet with approval of the courts. These are governed by a special equity principle where the terms are fair and bona fide, taking into account the well being of a family. In Potti Lakshmi Perumallu vs. Potti Krishnavenamma AIR 1965 SC 825 it was held that before the enforcement of family settlement, it must be shown that there was an occasion for effecting a family arrangement and that it was acted upon.
(i) Agreements dated 31-10-1983 and 19-4-1985:-Agreements dated 31-10- 1983 Ex. D1 and dated 19-4-1985 Ex. D3 and site plan dated 20-6-1985 Ex. D2 are very important documents which are in the nature of partition of property and conferment of respective ownership rights of parties. Plaintiff is admitting its execution as well as his signatures on the same but is taking plea that first page of hand written agreement Ex. D1 dated 31-10-1983 has been changed whereas second typed agreement written on stamp paper Ex. D3 dated 19-4-1985 was got signed from him forcibly on 10-10-1986 at point of knife. However at the time of exhibiting these two documents in the statement of DW-1, no such plea of changing of first page of Ex. D1 and obtaining signatures forcibly on Ex. D2 was raised but its admissibility was challenged only on ground of its non registration.
Agreement Ex. D1 was executed between parties on 31-10-83 with the intervention of Sh. Surya Prakash Mahajan, uncle of parties and Sh. K.K. Gupta, brother in law of parties who were appointed arbitrator by all. PW-1 also admitted in his cross examination that his brother in law Sh. K.K. Gupta also became mediator who got initiated settlement talks. It was agreed by the parties that First Floor and Barsati Floor shall be constructed to accommodate all four brothers in the property in question. There shall be five portions of the property out of which plaintiff will get two portions and remaining three portions shall be distributed by defendants no. 1 to 3. It was also settled which 25 of the floor or portion shall be occupied by which of the party and there shall be complete privacy and interior courtyard shall have partition wall also.
Thus from agreement Ex. D1, it is clear that parties have virtually distributed and divided the property in question through family settlement. This agreement is signed by plaintiff and all the defendants in original and is witnessed by Sh. K.K. Gupta. Mere fact that concerned one of the arbitrator Sh. Surya Prakash Mahajan had not signed it is of no consequence. This agreement was also not required to be made Rule of the Court under old Arbitration Act as it was an internal family arrangement and not formal arbitration award. Sh. Surya Prakash Mahajan was relative of the parties who advised and helped the parties to sort out their differences whereas ultimate decision was to be taken by the parties themselves.
DW-2 is the brother in law of parties who in his statement specifically alleged about execution of this agreement between parties and stated that father of parties purchased the property after consultation with him in the name of plaintiff. This witness proved family settlements and stated that those were acted upon by the parties and parties are in possession of their respective portions came to their shares. No motive has been imputed by plaintiff against this witness for deposing falsely nor did he have any enmity with the plaintiff. It is not the case of the plaintiff that his relations with this witness were strained so to give him opportunity to depose against him incorrect facts.
The opening of joint bank account on 1-11-1983 after execution of partition agreement Ex. D1 dated 31-10-1983 leads to the inference that plaintiff also wanted to give effect to this agreement. Plaintiff had enough time to refute agreement dated 31-10-1983 till 20-4-1985 (when allegedly defendants had to vacate the suit property) to back out from the agreement but no steps were taken by him in this regard.
First agreement is admitted by plaintiff though he is taking a plea that its first page was changed. The contents of letter Ex. PW1/D1 written by plaintiff in his own handwriting on behalf of Sh. K.K. Gupta if is read along with agreement Ex. D1, then due to similarity of contents of both, it clearly rules out possibility of change of first page of the agreement. Accordingly it is held that agreement Ex. D1 was duly executed by plaintiff voluntarily and no first page of it is changed as alleged.
Non production of original of first agreement is of no consequence when it is an admitted document and bearing the original signatures of the 26 parties. Moreover at the time of exhibiting this agreement in the statement of DW-1 only objection was raised about its non registration and no objection was raised about changing of its first page by the plaintiff. The original agreement was in possession of Sh. K.K. Gupta. Moreover it was for the plaintiff to summon the original one from Sh. K.K. Gupta to establish that first page was changed when he once admitted its execution. This agreement is in handwriting of defendant no. 1 and its last page bears signatures of all the parties. Counsel for plaintiff relied upon case law Sudhir Engineering Co. vs. Nitco Roadways Ltd. 1995 (34) DRJ 86 and Smt. J. Yashoda vs. K. Shobha Rani AIR 2007 Supreme Court 1721 and argued that due to non production of original agreement dated 31-10-1983 an adverse inference has to be taken against defendants but the facts of this case is distinguishable as plaintiff has admitted execution of first agreement Ex. D1 and his letters and opening of bank account further fortifies its execution. Infact he was under obligation to summon the original from Sh. K.K. Gupta to prove that first page of this agreement was changed but due to failure to take such steps, an adverse inference has to be taken against the plaintiff and not against the defendants. It is not necessary otherwise that document executed by a party must bear his signatures on each page. Signing of a document at last page also draws a presumption of due execution of the same.
Plaintiff PW-1 in his statement alleged that he came to know about the alleged change of first page of this agreement in police station first time after lodging of complaint on 11-10-1986 but lateron he changed his version in his statement by saying that he came to know about the same only when during pendency of the this suit, he obtained its certified copies. Thus taking contradictory stand by plaintiff about the date of knowledge of alleged changing of first page further makes him unreliable person.
Another family settlement was executed on typed stamp paper on 19-4-85 between the parties which is Ex. D3. In fact it is the reproduction of first agreement Ex. D1 regarding portion to be occupied by each one after raising construction of First Floor and Barsati Floor. This agreement further contains an averment as under;
"All the parties shall have exclusive right of ownership and possession in their respective portions. The legal heirs shall not raise any objection to the above settlement."27
Family settlement Ex. D3 not only determines the partition of the property but also confers an exclusive ownership rights to the respective parties in respect of portions assigned to each one. This agreement is signed by parties twice, firstly on 19-4-1985 and secondly on 20-6-1985. It appears that this agreement executed on 19-4-1985 was reconfirmed on 20-6-1985 by signing again when the site plan Ex. D2 was prepared showing proposed portions of each one and signed by all.
Ld. Trial Court has also not considered in detail the effect of second agreement dated 19-4-1985 Ex. D3 in its judgment. This agreement further point out that exclusive ownership rights were given to defendants in respect of their respective portions divided under agreement Ex. D1. On the other hand, on basis of this agreement Ex. D3, a site plan of the property Ex. D2 was prepared bearing signatures of all including plaintiff for submitting to the office of MCD for sanction. Admittedly this plan was prepared by plaintiff himself being a qualified draftsman which shows that he himself wanted to get this agreement enforced. Had plaintiff claimed exclusive ownership of the property then there was no necessity for him to get signatures of defendants also on the site plan Ex. D2 and to execute family settlements Ex. D1 and D3.
DW-2 who is brother in law of the parties in his deposition specifically stated that agreement Ex. D3 was arrived at with his consultation though it is not signed by him. Admittedly this witness had no strained relations with the plaintiff and had no reason to depose falsely. Hence version of DW-2 has to be accepted as correct. The argument of counsel for plaintiff that Ex. D3 was not signed by any independent witness is without any force as family settlement does not require compulsorily attestation by any third person or independent witness. Another submission that defendant no. 3 was not present in Delhi on both dates i.e. 19-4-1985 or 20-6-1985 and he signed on it on some later date cannot be accepted in absence of any evidence. Plaintiff could bring on record evidence from the office of defendant no. 3 to show that he was posted outside Delhi and on both days was not present in Delhi but failed. Non production of any such record by the plaintiff disproves the plea of fabrication or manipulation of agreement Ex. D3.
Plaintiff admitted his signatures on family settlement Ex. D3 which clearly shows that property was treated as joint property by him. Plaintiff has alleged that his signatures were forcibly obtained on it on 10-10-1986 at point of knife and he lodged police complaint Ex. PW1/40 on next day. Plaintiff has failed to prove the due lodging of police complaint in respect of alleged action of 28 defendants in getting his signatures on settlement dated 19-4-1985 on the point of knife. No record of police station was summoned to establish that any such complaint was lodged despite the fact that name of witness from police station was mentioned in the list of witnesses. PW-1 also admitted in his cross examination that he had not raised any alarm or noise when this alleged incident of threatening him at point of knife had happened though people used to live in his neighborhood. Plaintiff did not issue any notice to defendants in this regard nor approached higher authorities of police or court of magistrate when no action was taken on his police complaint. On the other hand stamp paper used to prepare this agreement Ex. D3 was purchased on 19-4-1985 itself. The site plan Ex. D2 prepared by plaintiff himself after execution of this agreement also shows that it was signed on 20-6-1985. These facts corroborate the fact that agreement Ex. D3 was executed on 19-4-1985 itself and reconfirmed on 20-6-1985 and not subsequently on the point of knife on 10- 10-1986 as alleged. Plaintiff is relying upon the police complaint which is not properly proved and thus cannot be considered in evidence in favour of plaintiff but it does not mean that it cannot be used by defendants also. If any document filed by a party is not proved as per law then still it can be used by the opposite party against the party filing it as per law laid down by Delhi High Court in K.K. Dhawan vs. Dr. Promila Sonali 1997 RLR 608. In this police complaint, plaintiff is simply saying that defendants are neither paying rent nor vacating the premises. He even did not specifically state in this complaint that defendants were occupying the premises as a licencee.
Second agreement Ex. D3 dated 19-4-1985 does not make first agreement dated 31-10-1983 as redundant but it is in furtherance of earlier agreement. There was a need to execute second agreement in detail to confer ownership rights to the parties in respect of respective portions already divided. The court has to read a document as a whole to find out what was the intention of the parties at the time of its execution and what they wanted to convey. The use of particular words is not a criteria to find out the exact nature of the document. The agreements Ex. D1 and D3 were not drafted by any legal expert but were written by parties themselves who admittedly are not having any legal knowledge. Hence non mentioning of specific words in the agreement that 'property was ancestral' or 'benami property' or 'purchased from the funds of father' or 'it is being partitioned' or 'shares are being distributed' etc. will not make it invalid. If the agreements Ex. D1 and Ex. D3 are read as a whole then it convey the feeling that parties wanted to get the property partitioned by 29 giving exclusive ownership of particular portion to particular party after considering the same as joint property.
A technical objection regarding admissibility and validity of these agreements is taken by the plaintiff on the ground that it were neither registered nor properly stamped, so cannot be considered in evidence. This objection is without any force as defendants were not raising any claim on the same nor were seeking any declaration on its basis but are only defending their possession and title. Validity of such type of family settlement is recognized under law and can be looked into and can be considered in evidence. Family settlement is normally entered into in respect of joint family or ancestral properties. Where defendants are not seeking any declaration on basis of such family settlement but are defending their rights under it then in that situation non registration and non stamping of the same is of no consequence. In this regard reliance can be placed on the decision of Punjab & Haryana High Court given in case Harchand Singh vs. Mohinder Kaur AIR 1987 P & H 138 in which it is held that reliance upon unregistered family settlement by defendant in order to show his defence and to protect his possession is admissible evidence. Moreover in view of the above cited judgment of Supreme Court given in Kale's case, family partition does not require compulsory registration. Accordingly objections raised by plaintiff regarding legality and validity of these agreements are rejected.
Since the property was a Benami property so defendants have also antecedents' rights in the property and they were competent to execute family settlement. Family settlement was acted upon by the parties including plaintiff also. Moreover defendants are not seeking any declaration of their rights and title in the property by way of any counter claim but are protecting their possession. Thus family settlements in question particularly Ex. D3 have to be relied upon which on the face of it shows existence of antecedent right of the defendants in the suit property.
Defendant no. 3 did not step into the witness box nor had paid anything in the joint bank account. His letters Ex. PW1/32 to PW1/34 shows his hesitation to contribute anything towards construction of First Floor and Barsati Floor. The non examination of defendant no. 3 is not fatal to his case. All the defendants have taken same and similar defence by filing joint written statement and it is not necessary that all the defendants must also appear in the witness box to prove their respective defence. The evidence given by defendant no. 1 and 2 in the court can be very much relied upon for proving 30 the case of defendant no. 3 also. Even if defendant no. 3 had not contributed his share under the agreement then that itself is not sufficient to rescind the agreements Ex. D1 and D3 as a whole. Plaintiff could compel the defendant no. 3 to enforce his part of agreement by taking necessary legal steps but he failed. The legal and valid agreements entered between other parties still can be enforced even if it is held that qua defendant no. 3, these agreements had frustrated due to non payment of his share. Non acting upon these agreements by defendant no. 3 alone would not make whole of the agreements as void and unenforceable as rights of defendant no. 3 was independent and separate from others. Otherwise also when it is held above that property in question is a joint family Benami property then non making of contribution for the purpose of raising construction by defendant no. 3 alone itself is not sufficient to uphold the decree against him. The appeal of defendant no. 3 (since deceased) is also liable to be accepted.
Defendants have applied for plot in DDA by submitting affidavits that they did not own any property in their name. No benefit of these affidavits of defendants can be taken by plaintiff as the property in question was in the name of plaintiff on papers and not actually in the name of defendants. Similarly non applying by defendants to DDA for mutation of their portion is not fatal as after partition and execution of agreements, litigation had started between the parties. Taking of contradictory plea of defence i.e. co-ownership, family partition, adverse possession, Benami property, bar of section 60 of Easement Act etc. in the written statement by defendants is not sufficient to confirm the decree of ld. Trial Court as main plea of defendants was about their right of co-ownership on account of Benami property whereas other pleas infact are alternative in nature.
Counsel for plaintiff also tried to challenge the legality and validity of these family agreements Ex. D1 and D3 on the ground that real sisters of the parties were not made party to the same but this submission is without any force as sisters had tried to become party in the present proceedings by moving applications under Order 1 Rule 10 CPC but that application was dismissed on 27-9-99 as plaintiff himself strongly opposed that application. Otherwise also those sisters did not challenge the order of dismissal of their application till date. Now plaintiff cannot take a contradictory stand that sisters were necessary to be made a party to the settlements and without them, family settlement cannot be termed as legal and valid. Infact sisters as per contents of 31 their application under Order 1 Rule 10 CPC were supporting the case of defendants.
Family settlements cannot be rejected merely on the ground that no permission of DDA was taken as the property was a leasehold property. After going through the terms and conditions of the perpetual lease deed placed on record by plaintiff, I am of the view that entering into family settlement within the family without permission of the DDA is not barred. Prior permission of DDA is required where sale etc. has to take place with third party. Otherwise also all parties jointly would face the consequences if DDA questions the family settlement. Unless it is challenged by DDA, plaintiff and defendants shall be bound by it. In view of above discussions, it is held that agreements Ex. D1 and D3 were duly executed by parties and it are in the nature of family settlement and partition deeds.
(ii) Plan for construction:- Site plan Ex. D2 admittedly is prepared by plaintiff himself on 20-6-1985 as he is a qualified draftsman. This plan was to be submitted for obtaining sanction for raising construction of First Floor and Barsati Floor. In the site plan Ex. D2, five portions have been shown out of which two were to be retained by the plaintiff and remaining three portions were assigned to defendants each. It is signed by plaintiff and defendants on 20-6-85. This plan also point out which portion or floor shall be occupied by which of the brother and it apparently prepared to get agreements Ex. D1 and D3 enforced. Plea of plaintiff that this plan was signed by defendants only as a witness after admitting plaintiff as the owner of the property in question is not acceptable in any situation because this plea taken by PW-1 in his evidence is totally contradictory from the contents of the plan itself which specify which portion shall belong to which of the party. PW-1 further stated that along with this plan, affidavits were also filed by defendants in which they accepted plaintiff as owner of the property but no such affidavits of defendants are brought on record nor any witness from DDA is summoned by plaintiff to establish this fact of filing of affidavits.
Even if DW-2 admitted that some portions stated in this plan Ex. D2 is not in existence but he specifically stated that it was a proposed plan prepared as per agreements and construction was to be raised according to it by the parties subsequently. The another submission of PW-1 that this plan was showing portions to be given to defendants only for temporary purposes is not acceptable as correct because construction was still to be carried out as 32 per plan after obtaining approval of DDA. Hence the site plan Ex. D2 further proves that partition of the property had taken place and it was decided which of the party will occupy which portion and how much construction shall be raised by each one. This plan infact corroborate the terms of family settlements Ex. D1 and D3 regarding possession of each one after partition of the property in question.
(iii) Letters of plaintiff:- Ld. Trial Court has neither discussed nor dealt with some very crucial letters written by plaintiff to defendant no. 3 which are Ex. PW1/D1 to PW1/D7 in pursuance of and to get agreements and plan Ex. D1 to D3 enforced. PW-1 in his cross examination admitted that these letters Ex. PW1/D1 to D7 are in his handwriting and are in accordance with the terms of agreement Ex. D1. These letters point out that plaintiff infact had treated the property in question as joint family property and not his exclusive property. Plaintiff even acted upon these agreements after accepting the property as joint family property by opening of joint account, preparation of plan and starting of construction of First Floor. The admissions made on the part of plaintiff in these letters are very material as contents of the same clearly point out that plaintiff accepted the shares of all the defendants in the property in question.
The wordings of some of the letters written by plaintiff to defendant no. 3 are necessary to be reproduced. Plaintiff has addressed all these letters to defendant no. 3 and used also nick name of Sh. P.S. Mahajan (defendant no. 1) as Titoo and of Sh. A.S. Mahajan (defendant no. 2) as Kuku.
Letter dated 31-10-83 Ex. PW1/D1 addressed to defendant no.3 though is sent by Sh. K.K. Gupta but is signed by plaintiff and defendants no. 1 and 2. Plaintiff admitted in his statement that this letter is in his own handwriting. It is in consonance with the agreement Ex. D1 arrived at between parties and again repeats the manner of division of property in question among brothers. Demand has been made in this letter to defendant no. 3 asking him to send initial amount for purpose of preparation of plan of proposed construction as agreed upon by the parties. The contents of this letter totally rule out the submission of plaintiff that first page of agreement Ex. D1 was changed.
Letter of plaintiff Ex. PW1/D2 dated 25-12-84 addressed to defendant no. 3 shows that construction on First Floor was raised by defendants no. 1 and 2 also which contradicts plea of the plaintiff that First Floor was exclusively raised by him from his own funds. This letter says;
33"The house plan which was submitted for DDA's approval has been approved on the previous week. Actually I am waiting for you on 23rd. So you try to come any date so that the construction can be started as early as possible."
In letter Ex. PW1/D4 dated 12-8-85, plaintiff informed defendant no. 3 that construction has been completed except fixing of doors. It is also informed by plaintiff that other defendants have occupied the premises. It is stated that;
"In the meantime, they have kept their luggage to occupy the premises. Your presence is necessary"
Through another letter dated 19-8-85 Ex. PW1/D3, plaintiff was asking defendant no. 3 to come as construction is over.
Letter dated 7-8-85 Ex. PW1/D5 written to defendant no. 3 by plaintiff shows that property was treated as Benami property by the plaintiff and it was agreed who will occupy which portions as well as defendants were raising construction. Intention of plaintiff is clear that he wanted defendants to spent money for completing construction. This important letter of plaintiff clearly point out that he never treated this property as his exclusive property so now cannot be entitled to claim otherwise due to rule of estoppel. Plaintiff apparently used word 'they' in this letter for defendants no. 1 and 2. The relevant portion of this letter is;
"Regarding construction of house, due to heavy and continuous rain, the construction was stopped. Today they have started further construction and hardly it is a job of 4 or 5 days. They have not purchased the wood for doors and electrical material, it will further delay 3 or 4 days.
Now their planning is not to start the further construction. Titoo will occupy the big room alongwith kitchen on first floor. Kuku will occupy Bed Room on first floor and one Bed Room at ground floor. However on your demand and paying them Rs. 10,000/- they may give you one room at G.Floor.
In my opinion, it is of no use of coming on this Saturday. Let them spent some money and purchase wood for doors. I will inform you-------"34
From these letters of plaintiff, it is clear that construction has been completed in August, 1985 and after exhausting of common pool funds lying in the bank account, defendants started spending their own money in completing the construction. However statement of PW-1 that he had spent money on entire completion and it was completed in December, 1985 is totally incorrect and wrong fact in the light of his own admission made in this letter.
Another letter dated 29-7-85 Ex. PW1/D6 of the plaintiff written to defendant no. 3 deals with the funds of common pool and admitted portion of the parties belonging to them. Plaintiff also admitted that he could not prevent defendants from raising construction over the portions belonging to them. Plaintiff also admitted that defendants are spending their own money for completion of construction. This letter further point out that an agreement between parties had taken place and plaintiff infact was not agreeing to get sale deed of respective portion of the parties registered till construction is completed. Ld. Trial Court miserably failed to consider this letter of plaintiff in its judgment. The use of word 'they' in this letter again referred to defendants no. 1 and 2. It says;
"The funds from common pool is already finished and now they are spending themselves. Secondly according to agreement legally I cannot stop the construction as the portion belongs to them.
Now they have put the following conditions before starting further construction;
(1) Your share to be deposited in joint account.
(2) The present signed agreement is not acceptable to them.
Before further construction (your and mine portion) they want sale deed of their each portion to be registered in the court along with registered Will.
Regarding your share money it is upto you to decide. For second condition, how the non existing portion can be registered.
Regarding registering of their portions, it is not wiseable, as after that the construction will never start.-------Make up in your mind that only you and I will be the sufferers if the construction does not start."
There is one another letter Ex. PW1/D7 written by plaintiff to defendant no. 3 in which no date is mentioned but stamp of postal department affixed on it 35 point out that it was written sometimes before 8-7-85. In this letter plaintiff acknowledged receipt of some money from defendant no. 3 towards the joint account opened for purpose of raising construction and his intention to sell Kiran Garden property by all in order to complete the construction of the house. The contents of this letter also point out that Kiran Garden plot purchased by father virtually belonged to all. This letter further point out that defendants no. 1 and 2 wanted to finish the construction of only first floor.
These letters Ex. PW1/D1 to D7 admittedly written by plaintiff have to be read along with the agreements Ex. D1 and D3. From these letters it can be inferred that not only possession of particular portion, but also parties agreed to confer ownership rights over that particular portion and infact a partition of ownership and possession of joint family property was affected.
Plaintiff relied upon three letters Ex. PW1/32 to 34 written by defendant no. 3 to him. In these letters, defendant no. 3 showed his intention not to pay anything further including his share of Rs. 10,000/- but he never accepted plaintiff as exclusive owner of the property in question. Infact he also claimed share in it. Thus plaintiff has no use of these letters to establish his exclusive ownership over the property in question.
Defendants discharged the onus after relying upon the letters of plaintiff and agreements executed by him to show that property in question was a Benami property purchased by father of the parties for the benefit of all children and now burden shifted upon plaintiff to disprove it in which he failed. Plaintiff could not establish on record that property was not a Benami but exclusively belonged to him.
(iv) Opening of joint account in bank:- In pursuance of an agreement Ex. D1 and the letter Ex. PW1/D1 dated 31-10-1983 written by plaintiff, an account was opened in the joint names of plaintiff and defendants in bank on 1-11- 1983. DW-3 produced the record of this account which could be operated jointly by the parties only. This joint account was opened for the purpose of raising construction in the suit property in terms of settlement which also point out that intention of the parties was to enjoy the property by all as co- owners. The contents of letters of plaintiff itself shows that this amount of joint account was utilized for raising construction of First Floor and it was exhausted so lateron defendants no. 1 and 2 started completing the remaining construction from their own funds. The opening of this joint account for raising construction was in furtherance of agreement and it clearly leads to the 36 inference that plaintiff also wanted to act upon family settlement. Non making of subsequent payment of Rs. 10,000/- by defendant no. 3 is of no consequence when he initially had made payment required for opening of account. Due to non payment, only portion belonging to defendant no. 3 could not be constructed whereas others completed the construction in their respective portions.
(v) Demand of plaintiff to share house tax etc.:- Plaintiff admitted one piece of paper containing his writing which is Ex. PW1/D-1. In this document, he has mentioned about charges of house tax, insurance etc. for the year 1984 total amounting to Rs. 1435.78 paisa. Plaintiff admitted receipt of cheques of Rs. 1436/- from the defendant no. 1 and 2 on 20-6-1985. These cheques appear to have been issued towards the amount of house tax etc. payable by defendants on the day when settlement Ex. D3 and plan Ex. D2 were executed. Plaintiff admittedly did not receive this amount from defendant no. 3 as he was not living in the property in question at the relevant time. The argument of plaintiff that this amount was received in respect of electricity and water charges as well as towards costs of previous litigation is not acceptable as previous suit for injunction was withdrawn unconditionally and there was no such undertaking on the part of defendants that they would pay any amount towards costs of litigation. Plaintiff has also not brought on record any document to show that defendants were liable to pay to such an extent electricity and water charges. The content of this document itself says that amount was received by plaintiff towards share of defendants in respect of house tax etc. and not for any cost of the previous suit or any electricity or water expenses.
PW-1 plaintiff is taking stand that since defendants had agreed to vacate the suit property on 20-4-1985 and also agreed not to claim any right, title or interest in the property in question so he had withdrawn his suit for permanent injunction on 14-2-1984. However this submission in not reliable as withdrawl of the suit was not conditional. There is nothing on record that any such undertaking was given by defendants in the court as a precondition of withdrawl of suit.
Counsel for plaintiff relied upon the observations of the court dated 10-8-1988 given in earlier suit for injunction bearing no. 632/87 filed by plaintiff against defendants no. 1 and 2 while disposing of interim application for injunction. In this order court held that plaintiff will have to be deemed to 37 be the real owner of the property in question. No doubt that against this order no appeal was filed but plaintiff cannot take benefit of this observations as prima facie findings given while dealing with any interim injunction application cannot be said as conclusive findings. Moreover court also held in this order that effect of family settlement is required to be seen at trial after evidence. The above observation appears to have been given while relying upon the ordinance issued relating to Benami Transaction (Prohibition) Act. But now when it is held above that this Act is not applicable to the present proceedings then this observation becomes immaterial and cannot be relied upon.
In view of the above discussions, I am of the view that findings of ld. Trial Court on issues no. 1, 2, 3 and 7 were not correct and accordingly liable to be set aside. Property in question is a Benami property purchased by father of the parties for the benefit of not only plaintiff but also for defendants in which defendants have also shares in it. Due to family settlement and partition, defendants have become co-owner of the property in question in respect of share/portion assigned to each one in agreements Ex. D1 and D3 and specifically described in site plan Ex. D2. The construction in the property was not exclusively raised by plaintiff from his own funds but father of the parties also contributed in raising construction of Ground Floor and by defendants in raising First Floor.
(E) CROSS OBJECTIONS OF PLAINTIFF/CLAIM FOR DAMAGES (ISSUE NO.
5):-
Plaintiff is claiming damages from the defendants on the ground that their license was terminated and they were illegally occupying the suit property. Counsel for plaintiff cited case law Union of India vs. Wing Commander R.R. Hingorani (1987) 1 SCC 551 and argued that damages should be awarded as they knowingly continued to illegally occupy the suit property. However when it is held above that defendants were not the licensee but were occupying the suit property in the capacity of joint owners then in that circumstances they are not required to pay any damages to the plaintiff. Cross objections filed by plaintiff in this appeal are liable to be rejected straightway. Case laws D.C. Oswal vs. V.K. Subbiah AIR 1992 SC 184, Bakshi Sachdev vs. Concord (I) 1993 RLR 563, S. Kumar vs. G.R. Kathpali 1999 RLR 114 and Vinod Khanna vs. Bakshi Sachdev1995 II AD (Delhi) 304 which deals with the issue of taking of judicial notice of fact that rent increases from time to time everywhere are not applicable to the present 38 situation where it is held that defendants being the co-owners are not liable to pay any damages.
(F) APPLICATION UNDER SECTION 340 CR.P.C.:-
Counsel for defendants stated that there is one application under section 340 Cr.P.C. filed by defendants against plaintiff on record which has not been disposed off. It is true that on various facts, plaintiff has deposed contradictory facts and has not come to the court with clean hands. He in his cross examination has deposed contradictory facts in respect of assets left behind by his father, number of copies prepared of agreement Ex. D-1, when shifting has taken place in the property in question etc. besides number of other facts discussed above. These facts need not be discussed here in detail as from the letters written by plaintiff and family settlement executed by him referred above, it is prima facie clear that case instituted by plaintiff is not correct and not based upon actual real facts. Such type of litigant otherwise is not entitled to the relief who conceals material facts from the court, play fraud upon the court and try to mislead it. Case of such person can be summarily thrown out at any stage of the litigation. In this regard decision of Supreme Court given in case S.P. Chengalvaraya Naidu vs. Jagannath JT 1993 (6) Supreme Court 331 can be also relied upon. However keeping in view the fact that plaintiff is very old person having age of more then 70 years, depending upon his pension only and his case is being dismissed after long trial of 23 years, I by taking mercy upon him do not propose to take any criminal action against him. Application of defendants under section 340 Cr.P.C., if any is hereby ordered to be dismissed but certainly they are entitled to get heavy compensatory costs from the plaintiff. Defendants have been unnecessarily dragged for more than two decades in a litigation which had no basis and they might have spent lot of money to defend themselves which has also unnecessary harassment to them as well as unnecessary wastage of court time so under section 35 CPC, a heavy cost is liable to be imposed upon the plaintiff. Though under section 35A CPC, the compensatory cost for false claim is limited but there is no limit of imposing costs of litigation under section 35 CPC.
(G) FINAL ORDER ON APPEAL/RELIEF (ISSUE NO. 6):-
Accordingly on basis of above findings, appeal filed by defendants is hereby allowed. Cross objections filed by plaintiff are dismissed. The suit 39 filed by plaintiff is ordered to be dismissed after setting aside the judgment and decree of ld. Trial Court dated 31-3-2010. Plaintiff is directed to pay costs of Rs. 50,000/- including costs under section 35A CPC to all the three defendants each within one month failing which defendants shall be at liberty to approach ld. Trial Court for recovery of this cost through execution proceedings. No criminal action for perjury or filing false claim in court is proposed against plaintiff. Trial court record be returned along with the copy of this judgment. Decree be prepared and appeal file be consigned to record room.
(Ashwani Sarpal)
Dt. 1-7-2010 Additional District Judge