Delhi District Court
Sunil Bhatia vs Smt Phool Devi on 21 April, 2018
1
IN THE COURT OF SH. RAKESH KUMARIV, ADJ06
WEST DISTRICT,TIS HAZARI COURTS
CS No.10680/16
Sunil Bhatia
S/o Sh R C Bhatia
R/o D 332, Tagore Garden Extn,
New Delhi 110027
.........Plaintiff
Versus
1.Smt Phool Devi W/o Late Sh Hatta Ram
2. Sh Vijay Kumar S/o Late Sh Hatta Ram
3. Sh Ranjeet Kumar S/o Late Sh Hatta Ram
4.Sh Sanjay Kumar S/o Late Sh Hatta Ram
5.Smt Shakuntala D/o Late Sh Hatta Ram
6.Smt Maya D/o Late Sh Hatta Ram All at :
C55, Bhagya Vihar, Rani Khera, New Delhi 110081
7.Smt Manbhar CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page1/21 2 W/o Late Sh Raju A496, Raghubir Nagar, J J Colony, New Delhi27 ...... Defendant Date of Institution:17.04.2012 Date reserved for judgment:09.04.2018 Date of Judgment:21.04.2018 JUDGMENT
1. By filing the present suit plaintiff seeking the decree of possession in his favour and against the defendants in respect to property in question bearing no. A496, Land Area Measuring 25 sq yard with roof/ terrace rights, situated at J J Colony, Raghubir Nagar, New Delhi 110027 (herein after called suit property or property in question). Further, the decree of permanent possession thus restraining the defendant from creating third party interest / assigning or selling of the property in question alongwith mesne profit @ Rs 15000/ p.m. alongwith interest on the ground that property in question was stood in the name of Late Sh Hatta Ram who was the husband of defendant no 1 and father of defendant no 2 - 6. Defendant no 7 is the wife of pre deceased son of Sh Hatta Ram, who was expired during the life time of Sh Hatta Ram. It is contented by the plaintiff that he has purchased the property from defendant no 2 to 6 on the basis of registered RD dated 10.09.2011, Ex PW1/1 in favour of defendant no 1 and the defendant no 1 had executed the titled documents i.e Registered CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page2/21 3 GPA, Ex PW1/2 for consideration, agreement to sell and purchase Ex PW1/3, affidavit Ex PW1/4, receipts ExPW1/5 , possession slip Ex PW1/6 and Will EX PW1/7 all executed on 20.10.2011 and handed over the part possession of the property in question except the portion in which the defendant no 7 has been reported to be resided. It is contented that despite executing the documents Ex PW1/1 to Ex PW1/7, the possession of the portion in which defendant no 7 has been residing has not been handed over even despite sending the legal notice dated (unknown) to the defendant however, admitted that legal notice has not pleaded as well as not filed before the Court as such not part of the Court. Despite several request as mentioned in para no 20 of the Cause of Action para the possession has not been handed over to the plaintiff resulting into filing the present suit.
Defendant no 1 to 6 has already been proceeded ex parte and even WS not filed on their behalf and present case been contested by defendant no 7 alone.
2. On the other hand , WS to the plaint has been filed on behalf of defendant no 7 whereas preliminary objection has been taken that present suit has been barred by the judgment passed by Hon'ble Supreme Court titled as Suraj Lamp & Industries (P) Vs State of Haryana & Anr ; decided on 11.10.2011; SLP (C) No 13917 of 2009, the suit is bad for non joinder of necessary party.
CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page3/21 43. On merits all the contents of the plaint has been denied and the ground taken in the WS that the property in question could not be sold out as per rulses of the concerned authority and defendant no 7 has not received her share in the property in question as such defendant no 1 - 6 have no right to sell the share of the defendant no 7 to the plaintiff. In response to the para no 10 of the plaint, in para no 10 of the WS it is denied that defendant no 7 never give in writing to the plaintiff and his brother in law that she will give the vacant possession to the defendant on or before 25.11.2011 however, it is admitted that in the para that property has to be settled and defendant no 1 obtained the signature of answering defendant no 7 on two blank stamp papers in good faith, answering defendant signed the same and put thumb impression due to fiduciary relationship between defendant no 1 and answering defendant no 7 bring the daughter in law of defendant no 1 but defendant no 1 to 6 and plaintiff are in collusion with each other and they have fabricated and manipulated thumb impression and signature of answering defendant.
4. Upon completion of pleadings vide order dated 01.09.2014, the following issues are framed : (1) Whether the plaintiff is entitled for possession of property bearing no. A496, Land area measuring 25sq yd with roof / terrace rights, situated at J J colony , Raghubir Nagar, New CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page4/21 5 Delhi 27 ? OPP (2) Whether the plaintiff entitled for mesne profit @ Rs 15000/ from date of filing of the suit till possession is handed over to the plaintiff?OPP (3) Whether the plaintiff is entitled for interest, if yes, at what rate? OPP (4) Whether the plaintiff is entitled for permanent injunction as prayed for ? OPP (5) Whether the defendant no 1 - 6 were not entitled to sold out the share of defendant no 7 ? OPD (6) Relief
5. In support of the case, plaintiff Sh Sunil Bhatia examined himself as PW1 by way of affidavit and relied upon the documents i.e Registered RD dated 10.10.2011, Ex PW1/1; Registered GPA dated 20.10.2011, Ex PW1/2; agreement to sell/ purchase dated 20.10.2011, Ex PW1/3; affidavit dated 20.10.2011 as Ex PW1/4; receipts dated 20.10.2011, Ex PW1/5; possession slip as Ex PW1/6; deed of Will dated 20.10.2011 Ex PW1/7; site plan Ex PW1/8 (objected to as the negative of the same not on record); written version of defendant no 7 dated 22.11.2011, Ex PW1/9; affidavit of defendant no 7 dated 22.11.2011, Ex PW1/10; agreement to sell, affidavit, receipt, possession letter, Will in favour of Manbhar CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page5/21 6 ( defendant no 7) and her son Dinkar Sawaria are Mark X (colly). Sh Subhas Grover is examined as PW2. Sh Rajiv Gupta is examined as PW3 and Sh Rajeev Srivastava is examined as PW4 and on the request of ld counsel for plaintiff, evidence has been closed vide order dated 22.11.2016.
6. In support of the case, defendant Smt Manbhar examined herself as DW7 by way of affidavit and on the request of ld counsel for defendant, evidence has been closed vide order dated 03.07.2017.
7. It is contented by the plaintiff that during the cross examination of DW7 she admitted the execution of document Ex X as such admitted her signature and thumb impression and also admitted that execution of titled documents in favour of plaintiff through his brother in law namely Ranjit Singh.
Further, it is contented by Ld counsel for defendant submitted that suit of the plaintiff is hit by the judgment Suraj Lamp & Industries (P) Vs State of Haryana & Anr (supra) . The documents which is relied by the plaintiff are self contrary. As per the possession letter Ex PW1/6 in which it has been mentioned that the entire possession has been given whereas present suit has been filed for the part portion of the property in question claiming that defendant no 7 is in possession of part portion of the property in question which falsified the execution of the possession letter CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page6/21 7 Ex PW1/6 and even Ex PW1/6 did not bear the date of execution. It is contented that defendant no 7 is residing on the entire first and second floor of property in question. It is contented that Ex PW1/9 is forged and fabricated document as it is established on record that the stamp paper on which the document has been prepared in the month of September in the name of plaintiff whereas the same has been written or executed on 22.11.2011 and the property in question allegedly purchase on 26.09.2011. Moreover, defendant no 7 is used to append the signatures in Hindi and there is no occassion for her to put the thumb impression as contended by defendant on the documents Ex PW1/9 and Ex PW1/10. The even documents EX PW1/10 has been forged upto the extent that initially the document has been filed wherein no date has been mentioned as defendant has obtained certified copy as such plaintiff is also liable to prosecute for the perjury in the judicial record . During cross examination of PW1 this document has been exhibited Ex PW1/D1.
Defendant further contented that the suit has not been properly valued for the purpose of court fees and jurisdiction as in the plaint the suit property has been valued Rs 6 lakhs whereas the property was allegedly being purchased of Rs 7 lakhs as clear from the documents Ex PW1/5. Property in question is on lease basis and at the time of execution of sale, property in question was not free hold property therefore, the property could not be feasible for the plaintiff to purchase and contrary to the submission, ld counsel for plaintiff submitted to consider the testimony of CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page7/21 8 PW4.
Ld counsel for plaintiff submitted that in response to the objection qua the transaction that the judgment which is hit by the Hon'ble Supreme Court, ld counsel submitted that judgment has been passed in the month of October 2011 whereas titled documents has been executed by the defendant no 16 in favour of the plaintiff in the month of September 2011 and so far as the registration of documents is concerned U/s 17(1A) of Registration Act, since the plaintiff is in the part possession hence, claim can not be rejected merely on the basis of documents are registered as per recent amendment made in Registration Act .
In response to the submission of forgery, ld counsel for plaintiff submitted that nothing perjury has been done as original documents Ex PW1/10 has been filed only at the time of filing of evidence by way of affidavit and counsel for plaintiff submitted that stamp paper EX PW1/10 was being purchased in the name of defendant no 7.
During hearing, on being inquired about the document Ex PW1/ 9 and Ex PW1/10, no proper explanation has been given by the ld counsel for plaintiff then it is important to mention that PW1/ 9 was being purchased in the name of plaintiff whereas the PW1/10 was being purchased in the name of defendant. The explanation by the plaintiff that initially the documents Ex PW1/9 has been executed, which was being purchased by the dealer, and the subsequent document Ex PW1/10 was being purchased in the name of defendant as clear from the endorsement CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page8/21 9 made behind the document itself which is already part of the pleadings ( as clear from para no 3 of the plaint) wherein no name of the dealer has been mentioned and but as refer para no 3 of the evidence of PW1 by way of affidavit Ex PW1/A, name of dealer Sh Bhupinder singh has been mentioned and fairly admitted PW Bhupinder has not been examined).
8. I have heard the Ld Counsel for parties and perused the case file.
9. Before proceed further the present case has been contested by the defendant no 7 on the ground that the suit has been filed which is not maintainable after passing the judgment of Hon'ble Supreme court in case title Suraj Lamp & Industries (P) Vs State of Haryana & Anr(supra) in this regard it is important to note the judgment of Hon'ble High Court of Delhi and in case title Ramesh chand Vs Suresh chand & Anr 188(2012) DLT 538, decided on 09.04.2012, it has been hled that in a suit for possession the plaintiff is only required to show a better title as compared to the defendant and not an absolute title as in the case of declaration of ownership rights . A civil suit is decided on the preponderance of probabilities and the balance of probabilities supports the case of the plaintiff in the present suit. The defendant has tried to rely upon certain discrepancies in the evidence of the plaintiff. However, the said minor discrepancies are not fatal to the case of plaintiff in view of Ramesh chand CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page9/21 10 Vs Suresh chand (supra) wherein the Hon'ble High Court of Delhi has held that in a civil case decided on balance of probabilities there may appear inconsistencies in the deposition of witnesses, however the depositions have to be taken as a whole and minor inconsistencies which do not affect the main substance of the case, are to be taken in correct perspective alongwith the other evidences, including documentary evidence which is led in the case.
In case title Ramesh chand Vs Suresh chand & Anr (supra), Hon'ble High Court of Delhi has observed in para 2 of the judgment that "a reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme court has however reiterated that rights which are created pursuant to the Sec 53A of Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Sec 202 Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however certain rights can exist in an immovable property pursuant to the provision of Sec 53A of Transfer of Property Act, 1882, Sec 202 Contract Act, 1872 . There also takes place devol of interest after the death of the testator in terms of a Will." Further it has been held by Hon'ble High Court CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page10/21 11 of Delhi in Ramesh Chand Vs Suresh Chand, RFA No 358/2000 decided on 09.04.2012, in a suit for possession the plaintiff is only required to show a better title as compared to the defendant and not an absolute title as in case of declaration of owner rights.
Further admittedly in the present case the alleged title documents in favour of plaintiff i.e Ex PW1/1 to PW 1/7 has been executed on 20.10.2011 as such objection which is raised by defendant no 7 qua the maintainability of the suit is not strictly maintainable in the eyes of law especially keeping in view the above captioned judgment in case title Ramesh Chand Vs Suresh Chand( supra) and in the present case in para no 8 it has been pleaded that ( execution of above document the possession of entire property has not been handed over to the plaintiff because defendant no 7 was having possession of some part of the property in question i.e possession of one room on first floor and one room on second floor shown in red colour in the site plan which is Ex PW1/8 (objected to as the negative of the same not on record) .
In view of the above, the objection of defendant no 7 qua the non registration of document i.e agreement to sell / possession letter as such not maintainable and even otherwise title document allegedly executed in the month of September 2011.
10. My issuewise finding is as hereunder :
CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page11/21 1211. ISSUE NO 5 : Whether the defendant no 1 - 6 were not entitled to sold out the share of defendant no 7 ? OPD The onus to discharge this issue has been casted upon the defendant. The defendant no 7 has been examined by way of affidavit Ex DW1/A ( inadvertently written as Ex PW1/A which was a typographical mistake and same is corrected. Now it be read as Ex DW1/A) in which she reproduce all the contents of statement. In para no 9 of the plaint it is contented that it has been informed by the defendant no 1 - 6 to the plaintiff that they will get the vacant possession of the property in question which is under the possession of defendant no 7 as she has already received her share in the property and stated further that this fact was also admitted by defendant no 7 by executing documents dated 22.11.2011, Ex PW1/9 and affidavit dated 22.11.2011, Ex PW1/10 which is in the counter reply has been denied by the defendant no 7 while contented that defendant no 7 has not received any share in the property in question and answering defendant never given permission in writing to the plaintiff and his brothr in law that she will give the vacant possession of the suit property on or before 25.11.2011 with further contention that defendant no 1 asserted to the answering defendant no 7 that she had obtained the signature of answering defendant on two blank stamp papers in good faith, the answering defendant signed the same because of close relations and also CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page12/21 13 put thumb impression due to fiduciary relationship between defendant no 1 and answering defendant no 7( mother in law and daughter in law respectively) and after collusion with defendant no 1 - 6 the plaintiff has fabricated and manipulated the documents and filed the present case.
The similar deposition has been made by defendant no 7 in her affidavit and remained firm during her cross examination in respect to the fact that she has ever given permission to defendant no 1 to 6 to sell her share in the property in question however , it is a matter of fact that signature on document which is Mark X, has been admitted.
Bare perusal of the document Mark X , it reveals that document relates to the GPA having been executed by Sh Ranjit Singh S/o Sh Hatta Ram in favour of Sh Dinkar Sawaria S/o Sh Raju Sarvaria and Smt Manbhar ( defendant no 7) W/o Sh Raju Sawaria, agreement to sell between Sh Ranjit Singh S/o Sh Hatta Ram with Sh Dinkar Sawaria S/o Sh Raju Sarvaria and Smt Manbhar W/o Sh Raju Sawaria; affidavit of Sh Ranjit Singh; receipts of Rs 2 lakhs . All these documents are in respect to the sell of 50 % share in the property no 55 , land measuring 50 sq yd out of khasra no 29/21 situated at village Rani Khera , Delhi most commonly known as Bhabya Vihar in Block C, Delhi.
In respect to these documents, PW1 / plaintif has deposed in para no 9 that documents are related in respect to the share given by defendant no1 6 to defendant no 7. It is a matter of fact that the present suit has been filed against defendant no 7 also and had been made party. The name of CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page13/21 14 defendant no 7 while mentioning her husband name as Sh Raju whereas no affidavit has been filed by defendant no 7 in support of her WS, at the time of filing her evidence by way of affidavit Ex DW1/A, she had mentioned the name of her husband as Raj Kumar without clarifying whether the name of her husband is Raj Kumar or Raju .
Bare perusal of the document Mark X reveals that defendant no 7 instead of receiving any share, defendant no 7 has reported to be paid certain money to the first party Ranjit Singh for purchasing the property mentioned in the document itself which cannot be established or said to be proved that the defendant no 1 - 6 had paid any share to the defendant no 7 through Sh Ranjeet Singh and during cross examination of PW1, it is admitted that he has not executed document Mark X. The relevant portion of the cross examination is as under : "it is correct that I am not executant / first party of the said document Mark X, defendant no 7 signed in Hindi language, she also used to put her thumb impression. It is wrong to suggest that Ex PW1/10 was not signed by defendant no 7. It is wrong to suggest that I have put that I have put the date on Ex PW1/10 later on. It is wrong to suggest that I had tempered the judicial record with regard to Ex PW1/10."
Further, during cross examination is come up on record that "the stamp paper on which undertaking written on document Ex PW1/10 (correct document is Ex PW1/9) is made was purchased on 22.11.2011.
"The said stamp paper was purchased in my name and in the name of Sh CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page14/21 15 Rajan Bhatia (whereas the document Ex PW1/10 was being purchased in the name of defendant no 7). It is correct that document Ex PW1/D1 was filed alongwith plaint by the plaintiff". Further during cross examination of PW1, it is also come up on record that "it is incorrect to suggest that Ex PW1/9 is neither signed by defendant no 7 nor written by her. I do not remember the things happened prior to 7 days as my memory is weak. It is wrong to suggest that this stamp paper was purchased by me on 26.09.2011 on which the document Ex PW1/9 was got prepared (whereas the alleged property was being purchased on 20.10.2011) and if it is so the factum of execution of document could have been incorporated in the document Ex PW1/ 1 to PW1/7 or may be asked to the defendant to execute any document."
After taking into consideration the facts and circumstances and evidence led by the parties, I am of the considered view that the parties are supposed to lead the direct and prime evidence as per Sec 61 and in the present case plaintiff has failed to lead prime evidence which can substantiate that defendant no 1 - 6 has paid any share to defendant no 7 ever or filed any document in this regard. Here it is important to note here that during cross examination of DW Smt Manbhar , it is come up on record that "it is incorrect to suggest that my brother in law Sh Ranjit Singh has given me an alternative plot as per my share in the suit property. It is correct that the document exhibit Mark X is signed by me and my CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page15/21 16 son but the property was not handed over to me by my brother in law ( this testimony / portion of cross examination altogether contrary to the stand taken by the plaintiff to the document Mark X). The document Mark X talks about the sale and purchase of the property and nothing has been mentioned that the property was alleged being handed over or transfer on account of any share in respect to the property in question.
In the present case the prepondarance of probability lies in favour of defendant no. 7 as no direct evidence has been placed on record and admittedly plaintiff himself admitted that the property was being purchased without taking the portion of possession of property in question which is under the control and in possession of the defendant no 7 . On record there is no as such direct or indirect evidence placed on record on behalf of plaintiff which can suggest that defendant no 1 to 6 were authorised to sell the portion / share of the defendant no 7 especially when defendant no 2 to 6 had been executed RD in favour of defendant no1. Moreover, despite refusal of execution of document Ex PW1/9 and PW1/10 no handwriting expert has been examined by the plaintiff to substantiate his contention qua the execution of document Ex PW1/9 and Ex PW1/10 by defendant no 7, hence I am of the considered view that defendant has discharged the onus. Accordingly, the issue no 5 is decided in favour of defendant no 7 and against the plaintiff.
CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page16/21 1712. ISSUE NO. 1 ,2 ,3 and 4 :
(1) Whether the plaintiff is entitled for possession of property bearing no. A496, Land area measuring 25sq yd with roof / terrace rights, situated at J J colony , Raghubir Nagar, New Delhi 27 ? OPP (2) Whether the plaintiff entitled for mesne profit @ Rs 15000/ from date of filing of the suit till possession is handed over to the plaintiff?OPP (3) Whether the plaintiff is entitled for interest, if yes, at what rate? OPP (4) Whether the plaintiff is entitled for permanent injunction as prayed for ? OPP Since all these issues are interconnected, hence are taken together.
The onus to discharge all these issues have been casted upon the plaintiff. Plaintiff has examined by way of affidavit Ex PW1/A in which he reproduced all the contents of the plaint. Further examined Sh Subhas Grover as PW2 by way of affidavit which is Ex PW1/A who is attesting witness to the title / transfer documents in favour of plaintiff executed by defendant no 1 which is Ex PW1/2 to Ex PW1/7 and identifies his signature at point A1 to A6 on each document and during his cross examination, he admitted that he does not know whether the defendant CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page17/21 18 no 7 has signed the document Ex PW1/2 to PW1/7 however, voluntarily deposed that defendant no 7 has received her share from defendant no 1 but admittedly no receipt was executed between the plaintiff and defendant no 7 with respect to receiving her share. It is further deposed that defendant no 7 signed the document Ex PW1/10 and denied the suggestion that Ex PW1/10 does not bear the signature of defendant no 7. Sh Rajiv Gupta also examined as PW3 in respect to prove the registered RD in favour of defendant no 1 which is EX PW1/1 and registered GPA Ex PW1/2 in favour of plaintiff and lastly examined Sh Rajeev Srivastava as PW4 from Delhi Urban Shelter Improvement Board in respect to prove the fact that property in question being capable of sale and purchase and during cross examination it is come up on record that the property in questio can be subject to conversion from lease hold to free hold.
On the other hand, defendant no 7 has examined by way of affidavit which is EX DW1/A and reproduced all the contents of her WS. Before proceeding further as I have already discussed qua the maintainability of present case which are stated in para no 9 in as much as plaintiff has pleaded especially that after execution of document Ex PW1/2 to PW1/7 the part possession has been handed over but surprisingly no cross examination has been done by defendant no 7 to PW 1 on this point except the possession of suit property was taken by me on 22.10.2011 whereas no date has been mentioned on document Ex PW1/6 and denied the CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page18/21 19 suggestion. "It is wrong to suggest that defendant no 7 is residing on entire first floor and second floor and denied the suggestion. Further , it is wrong to suggest that defendant no 7 had not sold out the suit property to me (plaintiff). It is wrong to suggest that defendant no 7 had not executed the document in my favour regarding the suit property . It is wrong to suggest that she never handed over the possession of first floor and second floor of suit property to me. It is wrong to suggest that I am deposing falsely".
On the other hand, during cross examination of DW7 it is come up on record that "it is incorrect to suggest that I have given in writing that I will handed over the peaceful possession of the suit property on or before 25.11.2011. It is wrong to suggest that I am not in possession of entire first floor and second floor. It is incorrect to suggest that despite receiving the share I have not handed over the vacant possession. It is incorrect to suggest that plaintiff is bonafide purchaser and is entitled for the possession. It is incorrect to suggest that I am intentionally denying my signature and thumb impression to take the benefit in the present matter. I have not filed any complaint against my forged signature and thumb impression."
On this testimony, ld counsel for plaintiff contented that he has proved the case and on the other hand, defendant contented that plaintiff has failed to discharge the onus and defendant no 7 remained firm on the point that she has been residing in the entire first floor and second floor and had not executed any document either in favour of defendant no 1 or in CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page19/21 20 favour of plaintiff for which the suit can be decreed against the portion of possession of defendant no 7.
Since civil case has to be decided on balance of probabilities and there may appear inconsistencies in the deposition of witnesses, however the depositions have to be taken as a whole and minor inconsistencies which do not affect the main substance of the case, are to be taken in correct perspective alongwith the other evidences, including documentary evidence which is led in the present case and in the present case the balance of probabilities lies in favour of defendant no 7 as admittedly she is in the possession of her portion in the property in question till the date of filing of present suit and I have already decided issue no 5 in favour of defendant no 7 hence, I am of the considered view that the plaintiff is completely failed to discharge the onus and established that the defendant no 1 6 had given or paid the share of defendant no 7 and also there is no direct evidence in respect to the fact that the defendant no 7 executed documents Ex PW1/9 and PW1/10 as such appears to be forged and fabricated hence, I am of the considered view that the plaintiff is completely failed to discharge the onus of all the issues accordingly, all these issues I.e issue no 1,2,3 and 4 are decided against the plaintiff and in favour of defendant no 7.
CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page20/21 2113. RELIEF In the light of the above discussion an findings on issues as well as considering the facts and circumstances of the present case , I am of the considered view that the suit of the plaintiff is liable to be dismissed. Accordingly, the present suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced in the Open Court on 21.04.2018.
(Rakesh KumarIV) Additional District Judge06 West District, THC CS No.10680/16 Sunil Bhatia Vs Smt Phool Devi & Ors Page21/21