Delhi District Court
Khatija Begum vs Mohd. Saleem on 31 March, 2018
IN THE COURT OF SH. FAHAD UDDIN: CIVIL JUDGE-04:
CENTRAL DISTRICT: TIS HAZARI COURT: NEW DELHI
Case No.97769/16
IN THE MATTER OF
Ms Khatija Begum
W/o Mohd. Yusuf,
D/o Abdul Salam,
R/o 2436, Katra Rajji,
Fasil Road, Shardhanand Marg,
Delhi-110006.
... Plaintif
Versus
1.Mohd. Saleem S/o Mohd. Abdul Aleem C/o Smt. Ilahi Jahan 1835-38, Bazar Sirkiwalan Lal Darwaza, Delhi-110006.
2. Smt. Ilahi Jahan Widow of Late Abdul Salam, R/o 1835-38, Bazar Sirkiwalan, Lal Darwaza, Delhi-110006.
3. Ghulam Qadar, R/o First Floor, 1835-38, Bazar Sirkiwalan, Lal Darwaza, Delhi-110006.
4. Pappey Wala, Shop on Ground Floor, 1835-38, Bazar Sirkiwalan, Lal Darwaza, Delhi-110006.
...Defendants
Date of filing : 26.09.2006
Date of Institution : 27.09.2006
Date of pronouncing judgment : 31.03.2018
SUIT FOR DECLARATION, POSSESSION, PERMANENT AND MANDATORY INJUNCTION Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 1 of 51 Vide this judgment, I shall dispose of the suit filed by the plaintiff for declaration, possession, permanent and mandatory injunction against defendant No. 1 to 4. The brief facts necessary for the disposal of the present case may be described as under:-
Plaintif's case as per the Plaint:
1. It is the case of the plaintiff that defendant No. 1 is the son of sister of defendant No.2. The defendant No. 2 is the second wife of father of the plaintiff. The defendant No. 3 and 4 are the tenants in respect of property bearing Municipal no.
1835, 1836, 1837 and 1838, Lal Darwaza Bazar Sirkiwalan, Delhi- 06. The plaintiff submitted in the plaint that late Sh. Abdul Salam was the father of the plaintiff and husband of defendant No. 2. The said Sh. Abdul Salam was the owner of property no. 1835,1836,1837 and 1838, Lal Darwaja Bazar Sirkiwalan, Delhi- 06, comprising of ground, first, second and third floor (hereinafter referred to as suit property) . The plaintiff was born out of the wedlock from the first wife of Late Sh. Abdul Salam and Smt. Mehrun. The mother of the plaintiff i.e. Smt. Mehrun expired when the plaintiff was a small child. After the death of the real mother of the plaintiff, the father of the Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 2 of 51 plaintiff Late Sh. Abbul Salam married defendant No. 2. However, no child was born out of the wedlock between Late Sh. Abdul Salam and defendant No. 2.
2. It is the case of the plaintiff that defendant No. 1 used to come to the house of the father of the plaintiff and used to stay there very often. The defendant No.1 is in fact the son of one Abdul Alim, R/o Secandrabad, U.P. After the marriage of the plaintiff, the defendant no. 1 started coming to the house of the father of the plaintiff very often and started living there for long period continuously. Since, there was no other child of the father of the plaintiff and defendant No.2, they allowed the defendant no.1 to live there as per his wishes. It may be noted that father of the plaintiff namely Sh. Abdul Salam expired on 14.09.2005 in Delhi. The plaintiff submitted that after the death of Late Sh. Abdul Salam, the defendant no.1 in collusion, conspiracy and connivance with defendant no.2 started making efforts in order to dispose of the suit property to make illegal, unlawful and undue gain to themselves. Without even waiting for the last rituals to be performed of Late Sh. Abdul Salam, the defendant no.1 and defendant no.2 started contacting the local property dealers to sell and transfer the suit property without taking prior Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 3 of 51 permission and consent of the plaintiff as she was the only legal heir besides defendant no.2. The plaintiff was the only daughter of Late Sh. Abdul Salam and there was no brother and sister of the plaintiff. Therefore, the plaintiff has got proportionate share in the suit property. The plaintiff submitted that defendant no. 1 has no right to deal with the suit property including recovering or accepting the rent from defendant No. 3 and 4. It was submitted that defendant no. 1 is accepting the monthly rent @ 4000/- from the defendant no. 3 and @ Rs. 1500/- per month from defendant no. 4 and is in possession of the entire second floor and third floor of the suit premises.
3. The plaintiff submitted that on 01.10.2005, some property dealers had visited the suit property in the presence of the uncle of the plaintiff and on inquiry, it came into the knowledge of the uncle of the plaintiff that the said dealers had come to show the suit property to the prospective buyers and the defendant no. 1 had approached the local property dealers for disposing of the suit property. On this, the uncle of the plaintiff intimated the said property dealers that defendant no.1 had no right to sell or transfer the suit property in any manner whatsoever. Even the defendant no. 2 has no right to dispose of Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 4 of 51 the suit property individually. When the said incident came into the knowledge of the plaintiff, the plaintiff visited the suit premises and protested against the conspiracy of defendant no. 1 and 2. The defendant no.1 and 2 abused the plaintiff and threatened that no one can stop them from disposing of the suit property. The plaintiff also informed defendant no. 1 and 2 that all the legal heirs of Late Sh. Abdul Salam were co-owners and co-sharers in the suit property as per Shariat Law and the same was undivided and unspecified. Thus, without mutual consent of all the co-owners of the suit property, the same can neither be sold nor be transferred unless and until all the legal heirs confirm the sale of the suit property. However, the defendant No. 1 was still adamant on selling and transferring the suit property without caring for the interest of the plaintiff in the suit property. Hence the plaintiff filed the suit for permanent and mandatory injunction against defendant No. 1 and 2 seeking restrain order from selling, transferring or creating third party interest in respect of the suit property and also for recovery of the rent from defendant No. 3 and 4. The defendant no. 1 and 2 appeared before the Ld. Civil Judge in the said suit and filed their written statement alongwith the copy of sale deed dated 22.08.2002. The plaintiff submitted that the sale deed was a Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 5 of 51 shock for the plaintiff as well as for her uncle and therefore, the said suit was withdrawn by the plaintiff on 20.09.2006 with liberty to file proper suit before the appropriate forum.
4. It is the case of the plaintiff that defendant no.1 in conspiracy and in collusion with defendant no.2 forcefully without having any authority and without making any payment to the father of the plaintiff got the sale deed dated 22.08.2002 executed in favour of defendant no.1. The defendant taking undue advantage of the old age of the father of the plaintiff got the sale deed executed which is in fact grabbing of the property of the father of the plaintiff by way of the said sale deed dated 22.08.2002. By virtue of the said sale deed even the defendant no. 2 has been barred from her legitimate share in the property. Hence, in this background, the plaintiff has sought that the sale deed dated 22.08.2002 be declared as null and void as the same is a manipulated document and was executed without consideration. The plaintiff submitted that the said sale deed was executed under pressure or threat or by producing some other person before the authority since the father of the plaintiff i.e. Late Sh. Abdul Salam was hospitalized during that period and was not in a position to visit the office of the Sub Registrar Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 6 of 51 where the alleged sale deed was executed.
5. The plaintiff submitted that it was in the knowledge of almost everybody in the family of the plaintiff that the suit property was kept by the father of the plaintiff exclusively for the plaintiff. Even defendant no. 1 was well aware of this fact. The defendant no.1 has illegally and unlawfully occupied the premises and have been making all his efforts to dispose of the suit property. The plaintiff submitted that the defendant no. 1 ill- treated the father of the plaintiff during his lifetime and therefore, handing over the entire suit property to the defendant no.1 was not at all possible and the father of the plaintiff had not executed any document in favour of defendant no.1. The defendant no.1 is in illegal and unauthorized occupation of the suit property. The plaintiff has every right to get the premises vacated from the defendant no.1 and recover the rent from defendant no.3 and 4. Thus in these circumstances, the plaintiff has prayed for awarding of the following reliefs:-
a) a decree for declaration be passed in favour of the plaintiff and against the defendants thereby declaring the sale deed dated 22.08.2002 as null and void and unenforceable Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 7 of 51 since the same got executed by defendant no.1 illegally, unlawfully and forcibly.
b) a decree for possession of the suit property be passed in favour of the plaintiff thereby directing defendant no. 1 to vacate the suit premises and hand over the same to the plaintiff.
c) decree for permanent injunction be also passed in favour of the plaintiff and against defendant no.1 and 2 their agents, servants etc. restraining them from selling, transferring and creating third party interest in the suit property and further restrain them from recovering the rent from defendant no. 3 and 4.
d) a decree of mandatory injunction be also passed in favour of the plaintiff and against defendant no.3 and 4 thereby directing the defendant no. 3 and 4 to deposit the rent of their respective portion with this court.
e) Cost of the suit be also awarded in favour of the plaintiff and against the defendant.
Case of the defendant as per written statement.
6. The defendant filed written statement to the suit of the plaintiff. In the written statement defendant raised certain Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 8 of 51 preliminary objections against the suit of the plaintiff. Some of which are as under :-
a) The plaintiff has not come to this court with clean hands and has concealed the material facts from this court. The plaintiff while withdrawing the earlier suit in the court of Sh.
Vipin Rai, Civil Judge, Delhi had sought permission to file the fresh suit but the Hon'ble Court of Sh. Vipin Rai, Civil Judge declined the permission to file the fresh suit. Therefore, on this ground, the present suit is liable to be dismissed.
b) The present suit is barred under order 2 rule 2 CPC as the relief claimed in the present suit would have also been claimed by the plaintiff in the earlier suit. Therefore, the suit of the plaintiff is liable to be dismissed on this ground.
c) The suit of the plaintiff is barred under order 23 rule 1 (4) CPC as the plaintiff had already withdrawn the earlier suit, therefore, the plaintiff is precluded from filling this suit.
d) The present suit is barred by limitation as the declaration can be sought within the period of three years from the date of cause of action. Admittedly, in the present case, the sale deed was not executed in favour of the defendant on 19.08.2002, therefore, the relief of declaration is barred by limitation and the same cannot be granted. Consequently all other reliefs are not Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 9 of 51 maintainable and therefore, the suit is liable to be dismissed.
f) The plaintiff has no cause of action against the defendant.
g) The plaintiff cannot challenge the sale deed executed by late Sh. Abdul Salam in favour of defendant no. 1 as Late Sh. Abdul Salam was the sole and exclusive owner of the property and he was competent to sell the property to anyone.
7. The defendant submitted that Late Sh. Abdul Salam sold the property in question to the defendant no. 1 after receiving the sale consideration. Suit of the plaintiff is liable to be dismissed as there is no Shariat Law that legal heirs of the owner of the property become co-owners of the property or that the owner cannot sell the property without the consent of the legal heirs. The sale deed in question itself shows that the amount of sale consideration was duly paid by the defendant no.1 to late Sh. Abdul Salam and he duly received the payment of sale consideration from defendant no.1. The suit of the plaintiff is bad for misjoinder of the necessary and proper parties. The defendant No. 3 and 4 are neither necessary nor proper parties in the present suit. Thus, the suit of the plaintiff is liable to be dismissed.
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8. The defendant no. 1 also submitted in the written statement that the defendant no. 1 had been living with Late Sh. Abdul Salam since his childhood and late Sh. Abdul Salam treated defendant no. 1 as his son. For the last more than 15 years, Late Sh. Abdul Salam was totally dependent upon the defendant No.1. The defendant submitted that the plaintiff was born after the mother of the plaintiff was divorced by Sh. Abdul Salam. The defendant denied that the defendant No. 1 used to come to the house of father of the plaintiff or used to stay there for sometime very often as alleged by the plaintiff. The defendant no.1 submitted, in fact the defendant no. 1 had been living with Late Sh. Abdul Salam and he had been treating defendant no. 1 as his own child. The defendant admitted that the father of the plaintiff expired on 14.09.2005. The defendant denied that defendant no.1 had ever contacted local property dealers to sell or transfer the property in question to anyone as alleged by the plaintiff. It was again reiterated by the defendant that the defendant no. 1 had purchased the property in question from Late Sh. Abdul Salam vide registered sale deed dated 28.08.2002. The defendant no. 1 admitted that the plaintiff is the only daughter of Late Sh. Abdul Salam, however, he denied that the plaintiff has proportionate share in the suit Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 11 of 51 property. The defendant no. 1 submitted that by virtue of sale deed dated 22.08.2002, the defendant no. 1 became the absolute owner of the property in question. The plaintiff has no locus standi to question the sale deed as the father of the plaintiff has already sold the property to defendant No. 1. The plaintiff cannot stop the defendant no.1 from accepting the rent from defendant no. 3 and 4 or from selling the property. The defendant further denied that the defendant no. 1 is accepting rent of Rs. 4000/- per month from defendant No. 3 and 4 or Rs. 1500/- per month from defendant No. 4. The defendant submitted that no such incident occurred on 01.10.2005 as alleged by the plaintiff or on any other date. The defendant no. 1 never approached any property dealer for the sale of the property. However, the plaintiff cannot stop the defendant No. 1 from selling the property as the defendant no. 1 is the sole and exclusive owner of the property in question. The defendant no. 1 also submitted that defendant no. 1 and 2 never abused the plaintiff or threatened her as the plaintiff had never come to the suit property. The defendant denied that as per Shariat Law all the legal heirs of Late Sh. Abdul Salam are the co-owners and co-sharers in the suit property. The defendant submitted that the earlier suit filed by the plaintiff against the defendant was Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 12 of 51 withdrawn by the plaintiff on 20.09.2006. No liberty was granted by the previous court to the plaintiff to re- file the suit.
9. The defendant further denied that the defendant no. 1 got the sale deed of the suit property executed in his favour from the father of the plaintiff by force or without paying sale consideration as alleged by the plaintiff. The defendant denied that the sale deed in question is illegal, unlawful or against the moral turpitude. The defendant submitted that the sale deed dated 22.08.2002 cannot be declared as null and void. The defendant denied that some other person was produced in place of the father of the plaintiff before the authorities. It was denied by the defendant, the father of the plaintiff was hospitalized during the relevant period or that he was not in a position to visit the office of Sub-Regitrar for the purpose of execution of the sale deed as alleged by the plaintiff. The defendant submitted that the defendant no.1 never humiliated or ill-treated the plaintiff. The defendant submitted that question of keeping the suit property for the plaintiff by Late Sh. Abdul Salam does not arise at all as the plaintiff in her life time had never come to meet her father. The defendant denied that the defendant no. 1 ill-treated the father of the plaintiff. In fact, Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 13 of 51 the defendant no. 1 was looking after the father of the plaintiff Late Sh. Abdul Salam. The property had been sold to defendant no. 1 by Late Sh. Abdul Salam. The defendant denied that the defendant no. 1 did not inform the plaintiff about the death of Late Sh. Abdul Salam. According to the defendant no. 1, the plaintiff never visited the suit property on 15.09.2005 and thus the question of ill-treatment and humiliation does not arise at all. The defendant denied that the defendant no. 1 is in illegal and unauthorized possession of the suit property. The defendant submitted that the plaintiff has never been in possession of the suit property. The plaintiff has concocted false stories. No cause of action has arisen in favour of the plaintiff and thus, on the basis of the aforesaid averments, the defendant has prayed for dismissal of the suit of the plaintiff with heavy cost.
10. The plaintiff also filed replication to the written statement of defendant no. 1 to 4 wherein the plaintiff reiterated her case and denied the case of the defendant. The plaintiff submitted that the present suit cannot be called as the refilling of the same suit as was pending in the court of Sh. Vipin Kumar Rai, Civil Judge, Delhi. The present suit is for declaration, possession, permanent and mandatory injunction which was never filed by Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 14 of 51 the plaintiff. The plaintiff denied that in the present case, late Sh. Abdul Salam sold the property to the defendant no.1 after receiving the sale consideration. The defendant no. 1 has not given any sale consideration amount to the plaintiff. The plaintiff denied that the defendant no.1 was living with Late Sh. Abdul Salam since his childhood or that Late Sh. Abdul Salam treated defendant no.1 as his own son. The plaintiff submitted that taking the benefit of the old age of Late Sh. Abdul Salam, the defendant no. 1 treated him like his slave and the cruelty on his part ultimately led to the death of Late Sh. Abdul Salam. The plaintiff submitted that the plaintiff is the legal heir of Late Sh. Abdul Salam and thus entitled to a proportionate share in the property left by her father. The plaintiff denied that by virtue of sale deed dated 22.08.2002, the defendant no.1 became the absolute owner of the property in question and thus the plaintiff has prayed for decree of the suit as prayed for in the plaint. Issues.
11. On the basis of the pleadings of the parties, the following issues had been framed in the present matter vide order dated 08.12.2010.
i)Whether on the basis of plaint allegations, the plaintif Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 15 of 51 is entitled for a decree of declaration as prayed for. OPP.
ii)Whether on the basis of plaint allegations, the plaintif is entitled for a decree of possession as prayed for ? OPP.
iii)Whether on the basis of plaint allegations, the plaintif is entitled for a decree of permanent injunction as prayed for ? OPP.
iv)Whether on the basis of plaint allegations, the plaintif is entitled for a decree of mandatory injunction as prayed for ?OPP.
v)Whether the suit is not maintainable in view of the preliminary objections No. 1, 2, 3 and 4 ?OPD.
vi)Whether the suit of the plaintif is bad for non-joinder of the parties? OPD?
vii)Any other relief which the plaintif may be entitled for? OPP.
Plaintif's Evidence:
12. In order to prove her case the Plaintiff got herself examined as PW-1, PW-2, PW-3 and PW-4. PW-1 was Smt. Khatija Begum (Plaintiff herein ) who tendered her evidence by way of affidavit which is Ex. PW-1/1 and relied upon the documents Ex. PW-1/A (Site Plan of the suit property) and Ex.
PW-1/B (Sale deed dated 22.8.2002). PW-2 was Sh. Raisuddin who tendered his evidence by way of affidavit which is Ex. PW- 2/A. PW-3 was Sh. Rafiquddin who also tendered his evidence by Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 16 of 51 way of affidavit and the same is Ex. PW-3/A. PW-4 was Mst. Zahida who too tendered her evidence by way of affidavit Ex. PW-1/4 and relied upon the site plan already Exhibited as PW- 1/A. No other witness was examined from the Plaintiff's side and vide order dated 14.10.2014, the Plaintiff's evidence was closed.
Defendant's Evidence:
13. In order to disprove the case of the Plaintiff , the defendant got examined DW-1, DW-2, DW-3 and DW-4 . DW-1 was Sh.
Salim Ahmed (defendant no. 1 herein) who tendered his evidence by way of affidavit which is DW-1/A and the said witness relied upon documents DW-1/1 to DW-1/4. The details of which are as under:
a) Certified copy of sale deed dated 22.08.2002 as Ex. DW-
1/1.
b) Copy of Passport as Ex. DW-1/2 (OSR).
c) Copy of Ration card Ex. DW-1/3 (OSR).
d) Copy of 10th class certificate as Ex. DW-1/4 (OSR).
14. DW-2 was Sh. Naseem Ahmed who tendered his evidence by way of affidavit i.e. Ex. DW-2/A. DW-3 was Sh. Haseen Ahmed Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 17 of 51 who also tendered his evidence by way of affidavit i.e. Ex. PW- 3/A. DW-4 was Sh. Daulat Ram Kashyap , UDC from the office of SR-III, Asaf Ali Road, Delhi who produced the summoned record before the court pertaining to regd. Sale deed dated 22.08.2002 regd. at srl. No. 3953, addl. Book no. 1 vol no. 10582 dt, 22.08.2002 already Ex. DW-1/1. Thereafter vide order dated 25.05.2017 DE was closed.
15. It may be noted that, vide order dated 13.10.2008, it was informed to the court that defendant no. 2 had expired during the course of the proceedings and the Plaintiff was directed to take steps for bringing the legal heirs of defendant no. 2 on record. However, despite opportunity given no steps were taken by the Plaintiff to bring the LR's of defendant no. 2 on record and therefore vide order dated 20.07.2009, the suit against defendant no.2 stood abated.
Findings:
16. After going through the pleadings of the parties as well as careful perusal of the evidence and material available on record , the issue wise findings of this court are as under:- Case No.97769/16
Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 18 of 51 Issue no. 5: Whether the suit is not maintainable in view of the preliminary objections No. 1, 2, 3 and 4 ? OPD.
17. For the sake of convenience issue no. 5 is being taken up firstly as the defendant has raised certain preliminary objections against the maintainability of the present suit in the written statement.
(i) In the written statement filed on behalf of the defendant no. 1 to 4 a preliminary objection has been raised in para no. 1. It has been submitted by the defendants that the Plaintiff has not come to the court with clean hands and has filed false suit and has concealed material facts from the court. Plaintiff has suppressed the material facts that the Plaintiff while withdrawing the earlier suit in the court of Sh, Vipin Rai, Civil Judge, Delhi sought permission to file the fresh suit but the Court of Ld. Civil Judge, Delhi declined to give permission to refile the present suit . Therefore the present suit is liable to be dismissed with cost.
18. The Plaintiff in response to this objection raised by the defendants submitted in the replication that the present suit cannot be called as the refilling of the same suit as was pending in the court of Sh. Vipin Rai, Civil Judge , Delhi. The present suit is suit for declaration, Possession, Permanent and Mandatory Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 19 of 51 injunction which was never filed by the Plaintiff.
19. The record reveals that previously a suit for Permanent and Mandatory injunction , in the court of Senior Civil Judge, Delhi vide Suit no.167/06 was filed by the Plaintiff alongwith Co-Plaintiff Sh. Riazuddin against the defendants no. 1 to 4 . In that case the Plaintiff had sought the relief to restrain the defendants no. 1 and 2 to sell, transfer, part with possession and/or to create any third party interest in respect of the suit property and further to restrain defendant no. 1 and 2 from recovering rent from defendant no. 3 and 4. In the said suit an application U/s 151 CPC seeking withdrawal of the suit with permission to file afresh was filed on behalf of the Plaintiff. keeping in view the facts and circumstances of the case as well as the fact that the Plaintiff is the dominus litus, the Ld. Civil Judge, Delhi vide order dated 20.09.2006 dismissed the said suit as withdrawn with the observation that "Plaintif may file any suit as advised in accordance with law".
20. It may be noted that order 23 of the Civil Procedure Code provides for withdrawal and adjustments of suits. Rule 1 (1) provides that- At any time after, the institution of a suit, the Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 20 of 51 Plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. Rule 3 provides that- where the court is satisfied- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the Plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, It may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.
21. Thus, it is in the discretion of the court to grant such permission and it can be granted by the court either on an application of the Plaintiff or even suo motu. Such permission may be granted on such terms as to costs, etc. as the court thinks fit. The granting of permission to withdraw a suit with liberty to file a fresh suit removes the bar of res judicata. It restores the Plaintiff to the position which he would have occupied had he brought no suit at all. Accordingly, the submissions of the defendants that the present suit is the refilling of the earlier suit is not tenable in view of the aforesaid discussion. In the earlier suit the Ld. Civil Judge , Delhi vide Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 21 of 51 order dated 20.09.2006 dismissed the said suit as withdrawn with the observation that "Plaintif may file any suit as advised in accordance with law". Thus in view of the liberty given by the Ld. Civil Judge , Delhi, the present suit cannot be regarded as refilling of the earlier suit as the nature and cause of action of the present suit and the previous suit are entirely different. Hence, the objection of the defendants as raised in para no. 1 of the preliminary objections of the written statement is devoid of merits and is liable to be dismissed.
(ii) In preliminary objections no. 2 in the written statement , the defendants submitted that the present suit is barred under order 2 rule 2 CPC as the relief claimed in the present suit could have also been claimed by the Plaintiff in the earlier suit also. Therefore , the suit of the Plaintiff is liable to be dismissed on this ground. On the other hand, in the replication, the Plaintiff has denied that the present suit is barred under order 2 rule 2 CPC, as the relief claimed in the present suit could have also been claimed by the Plaintiff in the earlier suit also.
22. Order 2 rule 2 lays down that every suit must include the whole of the claim to which the Plaintiff is entitled in respect of the cause of action and where the Plaintiff omits to sue for or Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 22 of 51 intentionally relinquishes any portion of his claim, he shall not afterwards be allowed to sue in respect of the portion so omitted or relinquished. The provision of order 2 rule 2 is based on the cardinal principle of law that a defendant should not be vexed twice for the same cause. The principle contained in this provision is designed to counteract two evils namely (i) splitting up of claims and (ii) splitting up of remedies. To make the rule applicable, the following three conditions must be satisfied namely:
(i) The second suit must be in respect of the same cause of action as that on which the previous suit was based,
(ii) In respect of that cause of action, the Plaintiff was entitled to more than one relief, and
(iii) Being thus entitled to more than one relief, the Plaintiff without leave of the court omitted to sue for the relief for which the second suit has been filed.
In other words before the bar of order 2 rule 2 is invoked, the following questions should be asked:
(i) Whether the cause of action in the previous suit and the subsequent suit is identical?
(ii) Whether the relief claimed in the subsequent suit could have been given in the previous suit on the basis of the pleadings made in the Plaint?
(iii) Whether the Plaintiff omitted to sue for a particular relief on the cause of action which has been disclosed in the previous suit?Case No.97769/16
Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 23 of 51
23. Thus, keeping in view the aforesaid principles in mind, it cannot be said that order 2 rule 2 CPC is applicable in the facts and circumstances of the present case. Firstly the cause of action in the previously instituted suit and the present suit are entirely different. The previous suit had been filed by the Plaintiff seeking permanent and mandatory injunctions simpliciter against defendant no 1 to 4. The present suit has been filed for declaration, possession, permanent and mandatory injunction. The Plaintiff in the present suit is seeking declaration to the effect that the sale deed dated 22.08.2002 allegedly executed by the father of the plaintiff in favour of defendant no. 1 be declared as null and void and unenforceable as the same has been got executed by defendant no.1 illegally, unlawfully and forcibly. The said relief could not have been given in the previous suit as the fact of execution of the sale deed dated 22.08.2202 had been disclosed by the defendants in the written statement filed in that suit only . The pleadings in the previous suit as well as the present suit are entirely different and disclose a different cause of action. Since the Plaintiff could not have sought the relief of declaration in the previously instituted suit, the Plaintiff filed an application U/s 151 CPC Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 24 of 51 seeking withdrawal of the previous suit with permission to file afresh. keeping in view the facts and circumstances of the case as well as the fact that the Plaintiff is the dominus litus, the Ld. Civil Judge , Delhi vide order dated 20.09.2006 dismissed the previous suit as withdrawn with the observation that "Plaintif may file any suit as advised in accordance with law". Hence , in the considered opinion of this court the provisions of order 2 rule 2 CPC are not applicable in the present case and therefore the preliminary objection no. 2 as raised by the defendants in the written statement is dismissed for the aforesaid reasons.
(iii) In preliminary objections no. 3 in the written statement the defendants submitted that the present suit of the Plaintiff is barred under order 23 rule 1 sub rule 4 and as the Plaintiff has already withdrawn the earlier suit , therefore the Plaintiff is precluded from filing this present suit. Hence, the suit of the Plaintiff is liable to be dismissed with cost. On the contrary, the plaintiff denied in the replication that the suit of the Plaintiff is barred under order 23 rule 1 sub rule 4 CPC or as the Plaintiff has already withdrawn the earlier suit, therefore the Plaintiff is precluded from filing the present suit.
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24. As in the aforementioned paragraphs while dealing with preliminary objection no. 1 in the written statement, this court has already held that the present suit has been rightly instituted by the Plaintiff after withdrawal of the earlier suit and after seeking liberty as per law to file the fresh suit, the preliminary objection no. 3 in the written statement as raised by the defendants is not tenable and is therefore dismissed for the reasons mentioned in the preceding paragraph no. (i).
(iv) In preliminary objections no. 4 in the written statement the defendants submitted that the present suit is barred by limitation as the declaration can be sought within the period of three years from the date of cause of action. The defendants also submitted that admittedly in the present case, the sale deed was not executed by late Sh. Abdul Salam in favour of defendant no. 1 on 19.08.2002. Therefore the relief of declaration is barred by limitation and the same cannot be granted. Consequently all other reliefs are not maintainable and therefore the suit is liable to be dismissed with cost. In response to these averments, the Plaintiff denied in the replication that the present suit is barred by limitation and further denied that the relief of declaration is barred by limitation or the same cannot be granted.
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25. Article 58 of the Limitation Act 1963 provides that a suit to obtain a declaration simpliciter may be filed within the period of three years when the right to sue first accrues in favour of the Plaintiff. Article 59 of the Limitation Act provides that a suit to cancel or set aside an instrument or decree or for the rescission of a contract may be filed within the period of three years when the facts entitling the Plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to the Plaintiff. In the case of Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors. [CIVIL APPEAL NOS. 2811-2813 OF 2010 ,Arising out of SLP [C] Nos.6745-47/2009], the Hon'ble Supreme Court of India explained the difference between cancellation of a sale deed and the relief of declaration in the following terms:-
26. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' --
Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 27 of 51 two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non- est/ illegal and he is not bound by it.
27. Thus in the present case the Plaintiff is seeking the relief of declaration simpliciter and the case of the Plaintiff falls under Article 58 of the limitation Act 1963. The cause of action in favour of the Plaintiff arose when the right to sue first accrued. In the present case the sale deed in question was allegedly executed on 22.08.2002 by the father of the Plaintiff in favour of defendant no. 2. However, the fact of execution of sale deed came into the knowledge of the Plaintiff when the defendants filed their written statement in the previously instituted suit between the parties. The previous suit between the parties was filed on 05.10.2005. Since the Plaintiff could not have sought the relief of declaration in the previously instituted suit, the Plaintiff filed an application U/s 151 CPC seeking withdrawal of the previous suit with permission to file afresh. keeping in view the facts and circumstances of the case as well as the fact that the Plaintiff is the Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 28 of 51 dominus litus, the Ld. Civil Judge , Delhi vide order dated 20.09.2006 dismissed the previous suit as withdrawn with the observation that "Plaintif may file any suit as advised in accordance with law". Thereafter , the plaintiff filed the present suit against the defendants on 26.09.2006. Thus, in the considered opinion of this court the present suit has been filed by the Plaintiff within the period of limitation i.e. three years as the right to sue in the present case accrued for the first time in favour of the Plaintiff when the defendants filed their written statement in the previously instituted suit between the parties and mentioned the fact of execution of the alleged sale deed dated 22.08.2002 by the father of the Plaintiff in favour of defendant no.1, in their written statement. Hence, for these reasons this court is of the view that the present suit is within the period of limitation and accordingly this objection is decided against the defendants.
Issue no-6 Whether the suit of plaintif is bad for non- joinder of the parties? OPD.
28. In preliminary objection no. 11 in the written statement, the defendant has submitted that the suit of the Plaintiff is bad for misjoinder of the necessary and proper parties. The defendant no. 3 and 4 are neither necessary nor proper parties in the present suit. Hence the suit of the Plaintiff is liable to be dismissed. In her replication , the Plaintiff has denied that the Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 29 of 51 suit of the plaintiff is bad for misjoinder of the necessary and proper parties. The Plaintiff denied that the defendant no. 3 and 4 are neither the necessary nor proper parties in the present suit as alleged by the defendants.
29. Order 1 deals with the parties to a suit. Rule 3 provides for joinder of defendants. It states that all persons may be joined in one suit as defendants, if the following two conditions are satisfied:
a) The right to relief alleged to exist against them arises out of the same act or transaction and
b) The case is of such a character that, if separate suits were brought against such persons any common question of law or fact would arise.
30. The word "and" makes it clear that both the conditions are cumulative and not alternative. The underlying object of rule 3 is to avoid multiplicity of suits and needless expenses. There is a distinction between a necessary party and a proper party to a suit. A necessary party is one whose presence is indispensable to the constitution of the suit , against whom the relief is sought and without whom no effective order can be passed. A proper party is one in whose absence an effective order can be passed , but whose presence is necessary for a Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 30 of 51 complete and final decision on the question involved in the proceedings. In other words , in absence of a necessary party no decree can be passed, while in absence of a proper party a decree can be passed so far as it relates to the parties before the court. His presence is however enables the court to adjudicate more "effectually and completely." Two testes have been laid down for determining the question whether a particular party is a necessary party to a proceeding:
(a) There must be right to some relief against such party in respect of the matter involved in the proceeding in question; and
(b)It should not be possible to pass an effective decree in absence of such a party.
31. Where a person, who is a necessary or proper party to a suit has not been joined as party to the suit, it is a case of non- joinder. Conversely, if two or more persons are joined as plaintiffs or defendants in one suit in contravention of order 1 rules 1 and 3 respectively and they are neither necessary nor proper parties, it is a case of misjoinder of parties. Order 1 rule 9 provides that -no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The proviso Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 31 of 51 further provides that nothing in this rule shall apply to non- joinder of a necessary party. Therefore care must be taken to ensure that the necessary party is before the court, be it a Plaintiff or a defendant. Otherwise the suit or the proceedings will have to fail. The perusal of Plaint shows that specific averments have been made with reference to defendant no. 3 and 4 by the Plaintiff. It has been alleged that the Plaintiff has a right to recover rent from the defendant no. 3 and 4 being the only daughter of late Sh. Abdul Salam, the original owner of the suit property. Further in the prayer clause relief has been sought against defendant no. 3 and 4 also. In para (d) of the prayer clause it has been prayed by the Plaintiff that mandatory injunction be passed against defendant no. 3 and 4 thereby directing the said defendants to deposit the rent of their respective portions with this court. Thus keeping in view , the submissions as well as averments made in the Plaint , this court is of the view that defendant no. 3 and 4 are necessary as well as proper parties for the just adjudication of the present suit. Hence the contention of the defendants that the present suit is bad for misjoinder or non- joinder of necessary and proper parties is nothing but a bald plea in view of the aforesaid discussion. All the necessary and proper parties for the Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 32 of 51 adjudication of the present suit are before the court and therefore the objection raised regarding the non-joinder as well misjoinder of necessary parties is devoid of merit and hence dismissed. Consequently, this issue is also decided against the defendants.
Issue no. 1. Whether on the basis of plaint allegations, the plaintif is entitled for a decree of declaration as prayed for? OPP.
Issue no. 2. Whether on the basis of plaint allegations, the plaintif is entitled for a decree of possession as prayed for ? OPP.
Issue no. 3. Whether on the basis of plaint allegations, the plaintif is entitled for a decree of permanent injunction as prayed for ? OPP.
Issue no. 4.Whether on the basis of plaint allegations, the plaintif is entitled for a decree of mandatory injunction as prayed for ?OPP.
32. For the sake of convenience, issue no. 1, 2, 3 and 4 are being taken up together as they are interconnected and the onus to prove the same was on the Plaintiff. It is the case of the Plaintiff that the father of the Plaintiff Late Sh. Abdul Salam and husband of defendant no. 2 was the owner of suit property. After the death of the real mother of the Plaintiff , the father of the Plaintiff Late Sh. Abdul Salam married defendant no. 2 . No child Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 33 of 51 was born out of the wedlock of Late Sh. Abdul Salam and defendant no. 2. Defendant no. 1 being the son of sister of defendant no. 2 , used to come to the house of the Plaintiff and used to stay there very often. The defendant no. 1 is the son of Abdul Aleem R/o Sikandrabad. After the marriage of the Plaintiff, the defendant no. 1 started coming to the house of the father of the Plaintiff very often and started living there for long period. As there was no child of the father of the Plaintiff and defendant no. 2, they allowed the defendant no. 1 to live in the suit property as per his wishes. The father of the Plaintiff Late Sh. Abdul Salam expired on 14.09.2005 and after his death , defendant no. 1 in conspiracy and collusion with defendant no. 2 started making effort to dispose off the suit property without taking prior permission and consent of the Plaintiff as the Plaintiff is the only legal heir of late Sh. Abdul Salam besides defendant no. 2. It is the case of the plaintiff that on 01. 10.2005, some property dealers visited the suit property in the presence of the uncle of the Plaintiff. On enquiry it was revealed that they were some local property dealers and had come to show the property to the prospective buyers. When this fact came into the knowledge of the Plaintiff , the Plaintiff visited the suit premises and protested against the ill will and conspiracy of Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 34 of 51 defendant no. 1 and 2. On this defendant no. 1 and 2 abused the Plaintiff and threatened that no one can stop them from disposing of the suit property. Therefore, the Plaintiff filed a suit for Permanent and Mandatory injunction against the defendant no. 1 and 2 from selling, transferring or creating third party interest in respect of the suit property and also from recovering the rent from defendant no. 3 and 4. In the said civil suit the defendants appeared before the Ld. Civil Judge , Delhi and filed their written statement alongwith a copy of the sale deed dated 22.08.2002. The said sale deed was a shock for the Plaintiff and therefore the Plaintiff withdrew the said suit on 20.09.2006 with liberty to file a proper suit in accordance with law. The Plaintiff has alleged that defendant no. 1 in conspiracy and collusion with defendant no. 2 forcefully without having any authority and without making any payment to the father of the Plaintif , got the said sale deed executed in favour of defendant no,.1. The defendant no. 1 taking undue advantage of the old age of the father of the Plaintif got the sale deed executed, which is grabbing of the property of the father of the Plaintif. The Plaintiff is the co-owner/co-sharer of the suit property. Sale deed dated 22.08.2002 is a manipulated Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 35 of 51 document and the same was executed under pressure or threat or by producing some other person before the authority since the father of the Plaintiff was hospitalized during that period and was not in apposition to visit the office of the Sub-Registrar, where the said sale deed was executed. The suit property was kept by the father of the Plaintiff exclusively for the plaintiff. The Plaintiff alleged that the defendant no. 1 ill-treated the father of the plaintiff during his life time and therefore, handing over the entire suit property to defendant no. 1 was not at all possible . The defendant no. 1 is in illegal and unauthorized occupation of the suit property. Thus, the Plaintiff has every right to get the suit property vacated from defendant no. 1 and recover rent from defendant no. 3 and 4.
33. On the other hand it is the case of the defendant that the Plaintiff has no cause of action against the defendants. The Plaintiff cannot challenge the sale deed executed by Late Sh. Abdul Salam in favour of defendant no. 1 as late Sh. Abdul Salam was the sole and exclusive owner of the property and he was fully competent to sell the suit property to anyone. Late Sh. Abdul Salam sold the suit property to defendant no. 1 after receiving the sale consideration. The sale deed in question itself Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 36 of 51 shows that the amount of sale consideration was duly paid by the defendant no. 1 to Late Sh. Abdul Salam and he duly received the payment of sale consideration from defendant no.
1. The defendant no. 1 had been living with Late Sh. Abdul Salam since childhood and Late Sh. Abdul Salam also treated the defendant no. 1 as his son. For the last more than 15 years Late Sh. Abdul Salam was totally dependent upon defendant no.
1. The defendant no. 1 submitted that by virtue of sale deed dated 22.08.2002, the defendant no. 1 became the absolute owner of the property in question. Plaintiff cannot stop defendant no. 1 from accepting rent from defendant no. 3 and 4 or from selling the suit property. Defendant no. 1 and 2 never abused the plaintiff or threatened her as the Plaintiff had never come to the suit property. The defendant denied that defendant no. 1 got the sale deed of the suit property executed in his favour from the father of the Plaintiff by force or without paying sale consideration as alleged. The defendant submitted that the question of keeping the suit property for the plaintiff by Late Sh. Abdul Salam does not arise at all as the Plaintiff in her life time had never come to meet her father. The defendant has denied that the defendant is in illegal and unauthorized occupation of the suit property as alleged by the Plaintiff.
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34. It may be noted that an owner has three basic rights in the property. i.e. a right of ownership , of having the title to the property, secondly an exclusive right to possess and enjoy the property and thirdly, an exclusive right to alienate the property in any manner that he likes. Property and interests in property as a general rule are transferable. This rule of transferability is based on the maxim alienation rei prefurtur juri accrescendi , which means law favours alienation to accumulation. Therefore any attempt to interfere with the power of the owner to alienate his interest in the property is frowned upon by the law.1 In the Mohommaden law there is no distinction between ancestral and self- acquired property. The owner for the time being has absolute dominion over all property in his possession, whether he has acquired it himself or whether it has devolved upon him by inheritance. He can sell or dispose of it in any way he likes , provided operation is given to it during his lifetime. It is only with regard to dispositions intended to take effect after the donors death or made in extremis that his power of disposition is limited by the right of his heirs. He cannot by a testamentary disposition reduce or 1 Dr. Poonam Pradhan Saxena, Property Law, 79(lexis Nexis Butterworths Wadhwa Nagpur, 2008).
Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 38 of 51 enlarge the shares of those who by law are entitled to inherit. 2 Accordingly, in view of the aforesaid proposition of Law, the father of the Plaintiff herein i.e. Late Sh. Abdul Salam had full power to deal with his property in his life time as he wished as admittedly he was the absolute owner of the suit property. It may be also noted that the Hon'ble Supreme Court of India observed in the case of 'Prem Singh & Ors. v. Birbal & Ors.'3 that:- "There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption."
35. Consequently, in the present case as the plaintiff has challenged the execution of sale deed date 22.08.2002 in favour of defendant no. 1 by the father of the Plaintiff on the ground that the defendant no. 1 illegally and unlawfully got executed the sale deed in his favour , the onus to prove these averments was on the Plaintiff. In the Plaint the Plaintiff has submitted that the sale deed dated 22.08.2002 is a manipulated document and was executed without consideration. The same was executed 2 Justice S.H.A Raza, " Ameer Ali's , Commentaries on Mahommedan Law", 991 (Hind Publishing House, Allahabad U.P , India 5th edition 2007). 3 Appeal (civil) 2412 of 2006 on 2 May 2006.
Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 39 of 51 under pressure or threat by producing some other person before the authority since the father of the Plaintiff late Sh. Abdul Salam was hospitalized during that period and was not in a position to visit the office of the Sub-Registrar where the alleged sale deed was executed. However, the evidence on record reveals that the defendant no. 1 was living with late Sh. Abdul Salam for a long time. PW-1 Khadija Begum has admitted in her cross examination that when she was 6-7 months old , the father of the Plaintiff Late Sh. Abdul Salam got remarried with defendant no. 2. No child was born out of the said wedlock. She has admitted that her father had developed special afection for defendant no. 1 , therefore he treated him like son. PW-2 Sh. Raisuddin has admitted in his cross examination that he had not seen any forcible act of defendant no. 1 in getting the sale deed registered. The sale deed dated 22.08.2202 was not executed before him. He further mentioned in his cross examination that he did not know whether defendant no. 1 had exerted any threat or pressure upon Late Sh. Abdul Salam for the execution of the sale deed in question. He further mentioned that "No body had told him that some other person was produced before the office of Sub-Registrar Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 40 of 51 under the guise of Late Sh. Abdul Salam for the execution of Sale deed (Ex. PW-1/B). He accepted in his cross examination that it was his idea that some other person in place of Late Sh. Abdul Salam was produced for the execution of sale deed dated 22.08.2002. PW-2 further admitted that it is correct that defendant no. 1 never humiliated , ill- treated and man handled the Plaintif in his presence. He further admitted that defendant no. 1 never forcibly threw out the Plaintif from the suit property in his presence. PW-2 also mentioned in his cross examination that last time he visited the house of Late Sh. Abdul Salam in the year 2000. PW-3 Sh. Rafiquddin also mentioned in his cross examination that it was wrong to suggest that during the lifetime of Late Sh. Abdul Salam , defendant no. 1 did not allow the Plaintiff to enter the suit property. He also mentioned that he did not know anything about the fact that the sale consideration was not made by the defendant no. 1 to Late Sh. Abdul Salam. PW-3 further mentioned in his cross examination that the father of the Plaintiff Late Sh. Abdul Salam never used to take his permission or his consent or used to discuss with him regarding his decisions regarding property matters. He Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 41 of 51 mentioned that he had heard from one Atik broker that the defendant was trying to dispose of the suit property. PW-4 Smt. Zahida has also mentioned in her cross examination that her maternal grandfather Late Sh. Abdul Salam had never used to discuss his property matters with her or her mother. She further admitted that she did not have any knowledge whether her maternal grandfather had sold the suit property to defendant no. 1. This shows that Late Sh. Abdul Salam used to take his decisions independently without consulting anyone.
36. Though it is the case of the Plaintiff that at the time of execution of the sale deed the father of the Plaintiff namely Sh. Abdul Salam was hospitalized, no such document has been brought on record which may show the same. The Plaintiff's witnesses PW-2 to PW-4 have also mentioned in their cross examination that Late Sh. Abdul Salam was hospitalized. However, their testimonies do not inspire the confidence of this court. PW-1 in her cross examination mentioned that her father was admitted in "Irwin hospital now LNJP". Her father was admitted in the hospital for 22 days prior to the death. However, PW-2 mentioned that it was a private hospital. He also said that he did not know the name of the doctor who was Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 42 of 51 treating Sh. Abdul Salam during those days. Abdul Salam was hospitalized for about 10-12 days. PW-2 further mentioned that Late Sh. Abdul Salam initially hospitalized in Rehmani Nursing Home and later on he was admitted to Irwin hospital. PW- 2 also admitted that he did not have any document pertaining to the said hospital to show whether Abdul Salam was hospitalized. PW-3 also mentioned in his cross examination that he did not remember the date when Sh. Abdul Salam became ill. He submitted that Abdul Salam became ill 2 to 3 times before he expired. Again in his cross examination on 29.03.2014 PW-3 mentioned that Abdul Salam was hospitalized several times. He had visited him at the hospital namely Rehmani Nursing Home and Lady Irwin Hospital. PW-4 also mentioned in her cross examination that she did not remember the date and month when her maternal grandfather Sh. Abdul Salam was hospitalized She submitted that her grandfather was hospitalized in LNJP hospital. Thus all the witnesses have given a different name of hospital. No Plaintiff witness has told the specific dates or month during which Late Sh. Abdul Salam was hospitalized. Thus for these reasons the testimony of all the Plaintiff's witnesses is different from each other, inconsistent and untrustworthy in these circumstances.
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37. In her cross examination PW-1 has admitted that PW-1 Khadija Begum did not have any photograph with her father. PW-3 stated in his cross examination that Plaintiff has 5 daughters and 2 sons. Plaintiff has celebrated the ceremonies of her children. Photographs were also taken in those marriage ceremonies. PW-3 also mentioned in his cross examination that he did not have any knowledge whether there is any photograph to show that Sh. Abdul Salam was present in the marriage ceremony of any of the children of the Plaintiff. PW-4 also admitted in her cross examination that it is correct that Sh. Abdul Salam her maternal grandfather did not attend the marriage of any of her sister. Thus, these facts show that Late Sh. Abdul Salam did not have very close relations with the Plaintiff and her daughters. Had there been close relations between the Plaintiff and Late Sh. Abdul Salam than it is highly improbable that the Plaintiff did not have any single photograph with her father. PW-1 also admitted in her cross examination that she got married about 30 years ago. The circumstances of the case also reveal that after the marriage of the Plaintiff she did not have close ties with her father.
38. Moreover, in his cross examination PW-3 has mentioned Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 44 of 51 that he is a property dealer since 2-3 years and the value of the suit property was nearly about 35-36 lakhs as on the date of the sale deed while the value as shown in the sale deed is only Rs. 1,25,000/- . However, PW-3 admitted that he cannot show any other sale deed pertaining to the relevant point of time to show that the value of the suit property was 35-36 Lacs alleged. He further admitted that he cannot bring any other sale deed to show that the value of the suit property was 35-36 lacs at the relevant point of time when the sale deed in question was executed. Thus, In the absence of any documentary evidence to this effect , it cannot be said that at the relevant time the market value of the suit property was 35-36 lacs as stated by the witness.
39. At this stage , it may be noted that it has been the case of the Plaintiff through out that the defendant no. 1 had been making all his efforts to dispose off the suit property. Regarding, the source of knowledge for the said fact the Plaintiff admitted in her cross examination dated 23.07.2012 that her brother had told her that defendant no. 1 was trying to sale the property. She had not gone to any property dealer to inquire about the same. On this aspect PW-3 stated in her cross examination that Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 45 of 51 he had come to know from the broker to whom defendant no. 1 had approached that defendant no. 1 was going to dispose of the suit property. The name of the said broker was Sh. Atik. PW- 3 has also stated in his cross examination dated 29.03.2014 that he had heard about the fact from one Sh. Atik broker that the defendant was trying to dispose of the suit property. He mentioned that he did not remember that date or certain time period after which the said Atik broker apprised him about the said fact that the defendant was trying to dispose of the suit property. PW-4 also stated in her cross examination dated 02.09. 2014 that Sh. Atik had told her mother that defendant no.1 was going to dispose of the suit property. It is worthy to note that to prove these facts the said Atik broker has not been got examined on behalf of the Plaintiff and in these circumstances the averments regarding the disposal of suit property by defendant no. 1 become a herarsay which does not carry much evidentiary value before the court.
40. The Plaintiff has challenged the sale deed dated 22.08.2002 on the ground that no consideration was paid for the execution of the said sale deed. In this regard, PW-1 Smt. Khadija Begum has stated in her cross examination that her Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 46 of 51 second mother had told her that the defendant no. 1 had not given any money to her father Sh. Abdul Salam for purchase of the suit property. When her father had expired only then her second mother had told her that defendant no. 1 had not paid any sale consideration. Thus in this situation the aforesaid facts also become a hearsay as the Plaintiff has failed to prove these facts before the court. Most importantly, the Plaintiff has not challenged the signatures of Late Sh. Abdul Salam on the sale deed dated 22.08.2002. PW-3 stated in his cross examination dated 17.05.2014 that he had never seen Sh. Abdul Salam signing. PW-4 in her cross examination dated 14.10.2014 stated that She even did not know whether Late Sh. Abdul Salam knew how to sign. She stated that her mother told her that the signatures of her maternal grandfather had been forged by the defendant. In these circumstances the Plaintiff has failed to prove that the signatures on the sale deed dated 22.08.2002 were not affixed by the father of the Plaintiff i.e. Late Sh. Abdul Salam.
41. On the other hand , the record reveals that defendant no. 1 was living with late Sh. Abdul Salam since a long time. Sh. Abdul Salam used to treat defendant no. 1 as his son. The said Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 47 of 51 fact has also been admitted by the Plaintiff in her cross examination. Ex. DW-1/2 (OSR) is the copy of the passport of defendant no. 1 , wherein the address of defendant no. 1 is mentioned as "House no. 1838, Lal Darwaza, Sirkiwalan, Huaz Qazi, Delhi. This is the suit property owned by the father of the Plaintiff. Ex.DW-1/3 (OSR) is the copy of the Ration card of Late Sh. Abdul Salam wherein the description of his family members has been given. In the Ration Card (Ex.DW-1/3) , the name of defendant no. 1 is also mentioned and the name of his father has been mentioned as Abdul Salam. Ex. PW-1/4 (OSR) is the class 10th certificate of CBSE. In this document also the name of father of defendant no. 1 is mentioned as Sh. Abdul Salam. Thus all these documents collectively show that the defendant no. 1 had been living with Late Sh. Abdul Salam for a long time since childhood and Late Sh. Abdul Salam used to treat defendant no. 1 as his own son. DW-2 Sh. Naseem Ahmed has stated in his examination in chief that defendant no. 1 had been residing in the suit property during his school days and the defendant no. 1 has been continuously living in the suit property. The defendant no. 1 also did his graduation while living in the suit property. He also stated in his examination in chief that Late Sh. Abdul Salam used to treat defendant no. 1 as Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 48 of 51 his own son. In his cross examination also DW-2 stated that defendant no. 1 had been residing in the suit property since his childhood. DW-3 Sh. Haseen Ahmed has stated in his cross examination that Late Sh. Abdul Salam had executed the sale deed dated 22.08.2002 in his presence and at that time he possessed sound disposing mind. He also stated in his examination in chief that late Sh. Abdul Salam signed and executed the Sale deed (Ex. DW-1/1) in his presence in the office of Sub-Registrar. In his cross examination DW-3 also stated that the real mother of defendant no.1 used to reside in the house of Late Sh. Abdul Salam and the father of defendant no.1 used to work with Sh. Abdul Salam. In his cross examination , he again reiterated that the sale deed in question was signed in his presence by Late Sh. Abdul Salam in the office of Sub Registrar. He also stated in his cross examination that he too put his signatures on the sale deed before the sub-registrar. Besides him, one advocate also signed the sale deed in the presence of sub-registrar. DW-3 has given a detailed account of the day on which the sale deed was executed by Late Sh. Abdul Salam. He has also firmly denied the suggestions put forward on behalf of the plaintiff in the cross examination. The whole testimony of DW-3 is consistent and firm and inspires the Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 49 of 51 confidence of this court. DW-4 UDC from the office of Sub- registrar also brought the summoned record before the court which is the sale deed dated 22.08.2002 registered at srl no. 3953, addl book no.1, vol no. 10528 dated 22.08.2002 (Ex. DW- 1/1). In his cross examination he stated that he could not say whether in the record produced by him the signatures and thumb impressions of the parties and the witnesses are not original as the concerned documents were not executed or registered in his presence. Further, keeping in view the relationship of late Sh. Abdul Salam and defendant no.1, the adequacy of consideration is of not much importance in the present case as in such relationships the real consideration is love and affection between the parties and not monetary consideration.
42. Consequently, on the basis of the aforesaid discussion and the material , evidence and testimony of the aforesaid witnesses, this court is of the view that the sa le deed dated 22.08.2002 has been duly executed by Late Sh. Abdul Salam in favour of defendant no. 1, which is registered at srl no. 3953, addl book no.1, vol no. 10528 dated 22.08.2002 (Ex. DW-1/1). As aforesaid, there is a presumption that a registered Case No.97769/16 Khatija Begum Vs Mohd. Saleem Judgment dated 31.03.2018 Page no. 50 of 51 document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption." The Plaintif in the present case has failed to prove such circumstances which may rebut the aforesaid presumption of law. The Plaintif has failed to prove that defendant no. 1 illegally and unlawfully got the sale deed dated 22.08.2002 in his favour. The Plaintif has further failed to prove that the sale deed dated 22.08.2002 is a manipulated document and was executed without consideration or the sale deed was executed under pressure or threat or by producing some other person before the sub-registrar. Hence, the suit of the Plaintif is liable to be dismissed for the aforesaid reasons.
Relief:
43. The suit of the Plaintif is therefore dismissed for the reasons mentioned above. No order as to costs.
Decree sheet be prepared accordingly.
FAHAD Digitally signed
by FAHAD UDDIN
Date: 2018.04.05
UDDIN 15:12:06 +0500
(Fahad Uddin)
CJ-04, Central,THC/Delhi
Announced in the open Court on this 31st day of March, 2018 This judgment consists of 51 signed pages.
Case No.97769/16
Khatija Begum Vs Mohd. Saleem
Judgment dated 31.03.2018 Page no. 51 of 51