Delhi District Court
Shakuntala Devi (Deceased) vs Shiv Narain on 30 August, 2024
IN THE COURT OF MS. MONIKA SAROHA
DISTRICT JUDGE-05 (WEST), TIS HAZARI COURTS,
DELHI
Civ DJ 607938/2016
(Old Suit No. 776/2001)
Date of institution :-23.04.2001
CNR No. DLWT01-000001-2001
Shakuntla Devi (since deceased)
Through her LRs
(1) Sh. Umed Singh Sehrawat (Husband)
(2) Ms. Vandana (Daughter)
(3) Ms. Aradhna Singh (Daughter)
(4) Maj. Ajay Sehrawat (Son)
(5) Sh. Vishal Sehrawat (Son)
All R/o H. NO. B-36,
Village & Post Office Mahipalpur,
New Delhi-110037.
......Plaintiffs
Versus
1. Sh. Shiv Narain
S/o Late Sh. Jaishi Ram
Village Mahipalpur,
South West District, Delhi.
2. Mahavir Singh S/o Late Jaishi Ram (since deceased)
through his LRs:-
2(a) Smt. Manju
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.1 of 55
D/o Late Sh. Mahavir Singh
R/o Khasra No.533/2,
Village Mahipalpur,
New Delhi.
2(b) Sh. Mohit
S/o Late Sh. Mahavir Singh
R/o Khasra No. 533/2
Village Mahipalpur,
New Delhi.
2(c) Ms. Minakshi
W/o Sh. Mukesh Rana
D/o Late Sh. Mahavir Singh
R/o V&PO Nangli Poona, New Delhi.
2 (d) Ms. Madhu
W/o Sh. Rajiv Hoonda
D/o Late Sh. Mahavir Singh,
R/o BB-17C, West Shalimar Bagh,
New Delhi-110088.
3. Sh. Yudhvir Singh
S/o Late Sh. Jaishi Ram
R/o Village Mahipalpur,
South West District, Delhi.
4. Sh. Satish Kumar
S/o Late Sh. Jai Narain
R/o Village Mahipalpur
South West District, Delhi.
5. Sh. Pardeep Kumar
S/o Late Sh. Jai Narain
R/o Village Mahipalpur
South West District, Delhi.
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.2 of 55
6. Sh. Vinay Kumar
S/o Late Sh. Shiv Narain,
R/o Village Mahipalpur
South West District, Delhi.
7. Sh. Arun Kumar
S/o Late Sh. Shiv Narain
R/o Village Mahipalpur
South West District, Delhi.
8. Smt. Kela Wati
W/o Sh. Daya Kisan
R/o B-19, Gurgaon,
Haryana, Kailash Kunj.
9. Smt. Savitri Devi
W/o Sh. Hari Kisan
R/o House Behind Boys Primary
School, Village Mahipalpur,
New Delhi.
.....Defendants
Date of institution :-23.04.2001
Order reserved on:-29.08.2024
Date of Decision:-30.08.2024
SUIT FOR DECLARATION OF TITLE, POSSESSION
AND FOR DAMAGES
JUDGMENT
This is a suit by the plaintiff seeking declaration of title, possession and damages against the defendants with respect to the suit property.
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.3 of 55
1. CASE OF THE PLAINTIFF 1.1 It is the case of the plaintiff that she is the owner who was in possession of property bearing Municipal no.B-45A forming part of Khasra No.539/1 equal to 625 sq. yds. (one half of bigha 5 biswa) in the Revenue Estate of Village Mahipalpur, North West District (hereinafter referred to as 'Suit Property'). She had purchased the suit property from Sh. Dasrath @ Jasrath Singh, who was the brother of her husband's father, for a consideration of Rs.70,000/- (Rupees Seventy Thousand only) in 1983, which amount she paid in installments till 26.03.1988. Then in 1988 after the last installment was paid by the plaintiff on 26.03.1988 Sh. Dasrath @ Jasrath also executed a Will in favour of the plaintiff with respect to the suit property thereby bequeathing the same to her. According to the plaintiff, she purchased this property by way of an "agreement to sell" dated 08.04.1983. When the plaintiff purchased the suit property five rooms were already constructed in it and it had boundary walls, later in due course, the plaintiff constructed more rooms in the property and let out all the rooms on rent except one room.
1.2 It is the grievance of the plaintiff that on 05.08.1998, suddenly the defendant no.1 demolished the boundary walls of the suit property and told the tenants of the plaintiff that they would have to pay rent to him now onwards and when Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.4 of 55 some of the tenants of the plaintiffs resisted defendant no.1 threw away their belongings and dispossessed them. Then defendants inducted new tenants in some of the rooms of the suit property and started collecting rent from them. The defendants also cut the trees growing on the suit property. The plaintiff reported the matter to the police, as well as to the forest department, but no immediate action was taken on her complaints although later on FIR of this incident was lodged.
1.3 Hence, the plaintiff has approached this Court praying that-
a) She be declared as the sole owner of the suit property
b) She be given re-possession of the suit property.
c) She be awarded damages/mesne profit to the tune of Rs.3,37,130/- against the defendants alongwith interest.
2. CASE OF THE DEFENDANTS 2.1 A common written statement was filed by defendants no.1, 3, 4, 5, 6 & 7. In this written statement all the defendants denied that the plaintiff had any right over the suit property. According to these defendants, the documents (agreement to sell, Will, Receipts etc) on which the plaintiff relies to claim ownership are all forged documents and no such documents were ever executed by Sh. Dasrath @ Jasrath.
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.5 of 55 2.2 It is the case of the defendants that Sh. Dasrath @ Jasrath executed a Will dated 20.07.1995 in which he bequeathed all his properties to his two daughters i.e. defendant no.8 & 9 Smt. Kelawati and Smt. Savitri Devi respectively. According to these defendants, the suit property was never allotted any number by the municipal authority and it does not carry the No. B-45/A as alleged in the plaint. Further, according to these defendants, the plaintiff was never in possession of the suit property and therefore there was no occasion for any defendant to ever dispossess her. Defendants denied evicting any tenant of the plaintiff since according to them, the plaintiff never inducted any tenant in the suit property. On these facts, these defendants resisted the suit of the plaintiff.
2.3 A separate written statement was filed by defendant no. 8 & 9. According to these defendants, their father Mr. Dasrath @ Jasrath was the owner of the property and before his death he executed a Will dated 20.07.1995 bequeathing all his properties in their favour. According to these defendants, the plaintiff was never in possession of the suit property and therefore there was no occasion for anyone to ever dispossess her from the same. They denied the allegations as made in the plaint and rather asserted their ownership and possession over the suit property as the rightful owners in possession.
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.6 of 55 2.4 No written statement was filed by any of the other defendants.
3. REPLICATION 3.1 The plaintiffs filed a replication to the written statement of defendants no.1, 3, 4, 5, 6 & 7 and another separate replication to the written statement of defendants no. 8 & 9 wherein contents of plaint were reiterated and version of the defendants was denied.
4. IMPORTANT PROCEEDINGS IN THIS SUIT 4.1 Since the plaintiff did not take steps for serving defendant no.10 to 21 vide order dated 16.09.2004 an adverse order was passed against the plaintiff and later vide order dated 18.01.2005, defendant no.10 to 21 were deleted from the array of parties. Infact, defendant no.10 to 21 were indeed only formal parties and no substantial relief was claimed against them since they were the tenants in the suit property who were allegedly dispossessed by the defendants and they never challenged the rights of the plaintiff over the suit property.
4.2 Ld. Predecessor by his order dated 26.07.2005, also deleted defendant no.2 from the array of parties. (Thereafter, Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.7 of 55 when the Ld. Presiding Officer changed, it was recorded in subsequent order-sheets that defendant no.2, defendant no.10 to 21 are exparte.) 4.3 On 10.04.2008, an application under Order 22 Rule 4 CPC was moved by the plaintiff stating that defendant no.2 has passed away and his LRs be impleaded in the suit. Notice of this application was issued to the proposed LRs. Thereafter, vide order dated 19.09.2008, Ld. Predecessor impleaded the LRs of deceased defendant no.2 and they were substituted in place of deceased defendant no.2. However, no reply/written statement was filed by LRs of defendant no.2 at any stage neither did they lead any evidence.
4.4 Also, During trial, the plaintiff expired on 11.09.2010 and an application for substituting her LRs was moved, which was allowed vide order dated 23.03.2011 by the Ld. Predecessor. Her LRs were substituted in her place.
5. ISSUES 5.1 From the pleadings of parties, following issues were framed for the first time on 31.08.2005-
(i) Whether the suit is barred by limitation?OPD
(ii) Whether the suit bad for non joinder of necessary parties?OPD Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.8 of 55
(iii) Whether the suit has not been properly valued for the purposes of court fees? OPD
(iv) Whether the suit is barred by res-judicata?OPD
(v) Whether the plaintiff has any legal right over the suit property?OPP
(vi) Whether defendant no.8 and defendant no.9 are owners of the half portion in land of Kh. No. 539/1? OPD 8 & 9
(vii) Whether the plaintiff is entitled for the decree of declaration as prayed for?OPP
(viii) Whether the plaintiff is entitled for the decree of possession as prayed for?OPP
(ix) Whether the plaintiff is entitled for damages. If yes, at what rate and for what period?OPP
(x) Relief.
5.2 However, the pleadings were subsequently amended by the parties. On the amended pleadings, vide order dated 09.03.2007, issues were re-framed by Ld. Predecessor which are reproduced as under:-
(i) Whether the suit is barred by limitation?OPD
(ii) Whether the suit is bad for non joinder of necessary parties?OPD Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.9 of 55
(iii) Whether the suit has not been properly valued for the purposes of court fees? OPD
(iv) Whether the suit is barred by res-judicata?OPD
(v) Whether the plaintiff is entitled for the decree of declaration, as prayed for?OPP
(vi) Whether the plaintiff is entitled for the decree of possession, as prayed for?OPP
(vii)Whether the plaintiff is entitled for damages/mesne profits, as prayed for? If yes, at what rate and for what period?OPP
(viii) Relief.
5.3 After the issues were so framed, matter was listed for plaintiff's evidence.
6. PLAINTIFF'S EVIDENCE 6.1 The plaintiff appeared in the witness box as PW1. Her examination-in-chief was partly recorded but the same could not be completed due to her death. Thus her part chief- examination is of no value in this suit.
6.2 Sh. Lokesh Kumar, Asst. Ahlmad from the Court of Ms. Kiran Bansal Ld. ACMM-IIIrd, Patiala House Court was Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.10 of 55 examined as PW2. He exhibited on record the following documents from the judicial case file of case titled as Shiv Narain Vs Umed Singh CC no. 1293/01 which was then pending in the Court of Ms. Kiran Bansal, Ld. ACMM-03, THC at the relevant time when he was examined:-
(i) Ex PW2/1 - Document dated 08.04.1983 titled "Agreement Of Land" executed between plaintiff and Sh. Dasrath @ Jasrath Singh.
(ii) Ex PW2/2 - Will dated 26.03.1988 executed by Dasrath Singh in favour of Shakuntla Devi bequeathing the suit property to her.
(iii) Ex PW2/3 - Copy of the receipt dated 17.06.1984 (in Urdu) (translated copy filed by the plaintiff herself on court record which she signed and also admitted to be the true translation when she was alive and which was also adopted by her LRs as they never challenged it).
This witness was not cross-examined by Ld. Counsels for any of the defendants.
6.3 Sh. Umed Singh i.e. husband of deceased plaintiff was examined as PW3 and he tendered his evidence by way of affidavit as Ex.PW-3/A. The contents of the plaint were reiterated in his affidavit. He relied upon following documents:-
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.11 of 55 (1) Ex PW 3/1 - Site plan of the suit property.
(2)Ex PW3/2 - Receipt of Rs.15,000/- dated 10.11.1985 executed by Dasrath Singh in favour of plaintiff.
(3) Ex PW3/3 - Receipt dated 26.03.1988 executed by Dasrath Singh in favour of plaintiff.
(4) Mark A - Document of MCD dated 30.01.1988/89 in which property no. RZ-B-45A, Mahipal Pur has been mentioned.
(5) Mark B - Property tax receipt dated 11.09.1998 with respect to property no. B-45A, Mahipal Pur.
(6) Mark C- Delhi Jal Board Bill dated 11.07.2000 (no property number mentioned only Mahipal Pur, Delhi is written) (7) Mark D - Delhi Vidhyut Board electricity bill for due date 27.12.1998 (no property number mentioned) (K. No. is 1239713) (8) Mark E - Delhi Vidhyut Board electricity bill for the month of March 1999 for H. No. B-45, Pole no. 78, New Delhi (K. No. is 1239713).
(9) Mark F - Delhi Vidhyut Board electricity bill for the month of May 1999 for H. No. B-45, Pole no. 78, New Delhi (K. No. is 1239713).
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.12 of 55 (10) Mark G - Performa for registration of existing ground water abstraction structure (tubewell/ borewell for property no. B-45A, 539/1).
(11) Mark H - Order dated 30.05.2013 passed by Honble High Court of Delhi in WP (Crl) 538/13 titled Umed Singh Sehrawat Vs State of Delhi.
(12) Ex PW3/6 - Property tax receipt of MCD for property no. B-45A, Receipt no. 109032.
(13) Ex PW3/7 - Fard dated 02.06.2003 prepared by DIU, South West District in FIR no. 111/2000 PS Vasant Kunj dated 24.02.2000 regarding seizure of electricity bills etc. (14) Ex PW3/12 (colly) - Two receipts issued by a building material supplier, Kartar Singh, dated 16.06.1986 in the name of the plaintiff.
(15) Ex PW3/13 - Receipt of Aquatech Engineers in favour of the plaintiff regarding purchase of submersible pump set dated 28.07.1994.
(16) Ex PW3/14 - Receipt of Saini Borewells in favour of the plaintiff regarding drilling work dated 10.08.1994.
(17) Ex PW3/15 - Receipt dated 09.03.1999 of payment towards registration of borewell.
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.13 of 55 (18) Ex PW3/17 - Certified copy of charge-sheet filed in FIR no. 111/2000 PS Vasant Kunj dated 24.02.2000.
(19) Ex PW3/19 (colly) - Response given by the Public Information Officer to the RTI request of Sh. Umed Singh Sherawat regarding Lal Dora Certificate in respect of Kh. no. 531, 533/2, 539/1 & 539/2.
6.4 PW4 Sh. Mahender Singh ZI, MCD Department- House Tax, Najafgarh Zone, Delhi was a summoned witness. He exhibited on record the following documents:-
(1) Ex PW4/A - Application written by the plaintiff Shakuntla Devi to the Asst. Collector, MCD received in the MCD office on 25.08.1998.
6.5 PW5 Sh. Ram Khiladi, Patwari, Mahipal Pur Village was also a summoned witness. He exhibited on record the following document:-
(1) Ex PW5/A (OSR) - Field book Village Mahipal Pur property as per which Kh. no. 539/1 and 539/2 is gairmumkin gitwar.
6.6 PW6 Sh. Ram Singh working as UDC, Delhi Jal Board, ZRO (SW-II), B-1 Vasant Kunj, New Delhi was another summoned witness. He has exhibited on record the following documents:-
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.14 of 55 (1) Ex PW6/A - The summary of billing and payment with regard to water charges from year 2000 to February 2010.
(2) Ex PW6/B - Covering letter with regard to abovesaid Bills, Summary of billing and payment from year 2000 to 2010.
6.7 PW7 Ms. Neha Gupta, Asst. Ahlmad from the Court of Sh. Loveleen, Ld MM, Patiala House Courts, Delhi was also examined as PW7. She exhibited on record the following documents:-
(1) Ex PW7/A - Order dated 26.09.2015 passed by Ld. MM-02, Delhi, in FIR no. 111/2000 PS Vasant Kunj.
In the cross-examination of this witness, the following document was exhibited-
(2) Ex PW7/D1 - FSL report dated 06.04.2004 with respect to FIR no. 111/2000 PS Vasant Kunj dated 24.02.2000.
6.8 PW8 Sh. Deepak Sharma, IT Associate, BSES Rajdhani Power Ltd. was also a summoned witness. He exhibited on record the following documents:-
(1) Mark A & Mark B - Copies of screenshots of Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.15 of 55 consumer details regarding new K no. 2521G1020658, Old no. 3MH0121239713.
(2) Mark C - Copy of duplicate electricity bill for premises no.H No. B-45, Pole no. 78, New Delhi-
110037 showing no electricity consumption.
(3) Mark D - Copy of screen shot of consumer details of the meter New K no. 2521G1020658, Old no. 3MH0121239713 in the name of Ajay Sehrawat at H. No. B-45, Pole No.78, Delhi-37.
(4) Mark E - Copy of screen shot of consumer details which shows the last payment in respect of the meter K no. 2521G1020658, Old no. 3MH0121239713.
6.9 Another witness examined by the plaintiff was Sh. Jagdish Chand C/o Acquatech Engineers as PW9. He has proved on record the following documents:-
(1) Ex PW9/1 - Authority letter dated 01.09.2017 issued by the proprietor of Aquatech Engineers in his favour.
(2) Ex PW9/2 (OSR) - Extract of Ledger of Acquatech Engineers.
6.10 PW10 Sh. Balraj Kanoongo, Record room, Tis Hazari Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.16 of 55 was also a summoned witness. He exhibited on record the following document:-
(1) Ex PW10/1 (colly) (OSR) - Chakbandi Scheme Karewahi Register, Mahipal Pur (in Urdu).
6.11 Another witness examined by plaintiff was Sh. K. S. Thakur, Tanslator, as PW11. He exhibited on record the following document:-
(1) Ex PW11/A (colly) (six pages) - Translated copy of certain paper, from Urdu to English (Hadbast no. 224, Village Mahipal Pur, Delhi).
6.12 Plaintiff further examined Sh. V. Vijay Vardhan, Administrator, Central Ground Water Authority as PW12. He exhibited /relied on the following documents:-
(1) Ex PW12/1 - Computer generated copy of borewell registration data of CGWA (Central Ground Water Authority).
(2) Mark X - Copy of receipt of Rs.100/- dated 09.03.1999.
(3) Mark Y - Copy of application dated 08.03.1999 for registration of borewell.
(4) Mark Z - Copy of pay order dated 04.031999 for a sum of Rs.100/- drawn on Oriental Bank of Commerce.
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.17 of 55 6.13 Sh. Anil Kumar Sharma, Draftsman was examined as PW13. He deposed that he prepared site plan Ex PW3/1 and the same bears his signature at Point A .
6.14 Sh. Raj Pal Guliya was examined as PW14 and he tendered his evidence by way of affidavit as Ex.PW-14/A. He was the attesting witness of the Will dated 26.03.1988, which was registered after the death of the testator of the Will.
6.15 Plaintiff further examined Sh. Prem Singh as PW15 and he tendered his evidence by way of affidavit as Ex.PW-15/A. This witness deposed that he was a tenant in a portion of the suit property from February, 1996 to August, 1998 and used to pay rent to the plaintiff, Ms. Shakuntla Devi. He also deposed that on 05.08.1998 Mr. Shiv Narain, Satish Kumar and others broke down the wall of the suit property and also the locks of the room which was in possession of Mr. Umed Singh. He further stated in his affidavit that he informed Sh. Umed Singh regarding the entire incident immediately.
6.16 No other witness was examined on behalf of the plaintiff and evidence was closed in affirmative on 15.11.2018.
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.18 of 55 6.17. Thereafter, the matter was listed for defendant's evidence.
7. DEFENDANT'S EVIDENCE 7.1 In their defence, all the defendants have examined only one witness i.e. Sh. Pradeep Sehrawat, defendant no.5. He appeared in the witness box as DW1 and tendered his evidence by way of affidavit as Ex.DW-1/A. He relied upon the following documents:-
(1) Ex DW1/1 - Site plan (2) Ex DW1/2(OSR) - Education Certificate of late Sh.
Dasrath @ Jasrath.
(3) Ex DW1/3 - Certified copy of orders of Hon'ble High Court dated 04.09.2001 & 26.09.2001 passed in Criminal Revision no. 309/1999.
(4) Ex DW1/4 (colly) - Certified copies of seizure memos dated 23.10.2000, 10.11.2000, 29.11.2000 & 16.12.2000 prepared in FIR No. 111/2000 PS Vasant Kunj U/s 147/148/149/452/457 /448/380 IPC.
(5) Ex DW1/5 - Certified copy of chargesheet filed in FIR no. 338/2007 (the same document was also marked as document Mark PW14/DY during the cross-examination of PW14).
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.19 of 55 (6) Ex DW1/6 (colly) - Certified copies of testimonies of witnesses recorded in FIR no. 111/2000 PS Vasant Kunj U/s 147/148/149/452/ 457 /448/380 IPC.
(7) Ex DW1/7 - Certified copy of judgment dated 27.11.2018 passed in CC No. 48752-16, FIR No. 111/2000 PS Vasant Kunj passed by Ld. MM-02/PHC, New Delhi.
(8) Mark X - Copy of plaint filed in suit titled as 'Umed Singh Sehrawat Vs Jaishi Ram & Anr.'.
(9) Mark Y - Criminal Complaint dated 14.12.2000 filed by Shiv Narain & others in the Court of Sh. V. K. Maheshwari, Ld. ACMM/Delhi.
The following documents were exhibited in the cross- examination of DW1:-
(10) Ex DW1/P1 - Certified copy of reply filed in the Hon'ble High Court to the application under Order 1 Rule 10 CPC in suit no. 2816/1993 titled as Umed Singh Sehrawat Vs Jaishi Ram & Ors. supported by the affidavit of this witness.
(11) Ex DW1/P2 - Certified copy of application in suit no. 2816/1993 titled as Umed Singh Sehrawat Vs Jaishi Ram & Ors. supported by the affidavit of this witness.
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.20 of 55 (12) Ex DW1/P3 - Letter dated 29.09.2004 written by Sh. R. K. Gupta, Dy. Conservator (Forest) to Sh.
Swadesh Parkash, Sub Inspector PS Vasant Kunj vide which total fine of Rs.2700/- was imposed upon Shiv Narain on 14.03.2000.
7.2 No other witness was examined by any of the defendants.
7.3 Vide statement/email dated 25.07.2024 made by their respective counsels, all the contesting defendants closed their evidence. Matter was then fixed for final arguments.
8. ARGUMENTS 8.1 Ld. counsel for plaintiff and the Ld. Counsel for defendants filed written submissions and also advanced lengthy arguments. I have heard the arguments as advanced by Ld. Counsels for the parties on 03.08.2024, 12.08.2024, 28.08.2024 & 29.08.2024 and perused the material on record. The issue-wise findings are as under:-
9. ISSUE-WISE FINDINGS
10. ISSUE NO.1 Whether the suit is barred by limitation?
OPD 10.1 The onus to prove this issue was upon the defendants.
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.21 of 55 In the plaint, the plaintiff has mentioned that the cause of action lastly arose on 04.08.1998 when the defendants broke the boundary wall of the suit property and dispossessed the tenants of the plaintiff from the same. Thus according to the plaint, the plaintiff was dispossessed from the portion of the suit property on 04.08.1998 only. Therefore, this suit for re- possession of the suit property which was filed on 23.04.2001 is well within the limitation period. The prescribed period for filing the suit for re-possession of a property is 12 years as per the Schedule to The Limitation Act, 1963. Hence, the suit of the plaintiff is within the prescribed limitation period for the relief of possession.
10.2 As far as other reliefs are concerned, according to the plaint, it was the first time on 04.08.1998 when the defendants disturbed the possession of the plaintiff and thus challenged the ownership of the plaintiff over the suit property in any manner so her period of seeking declaration of ownership also began only when she was disturbed or dispossessed for the first time. Therfore, for the relief of declaration also, the suit is within time.
10.3 The right of the plaintiff to seek mesne profits/damages also arose only from the alleged date of dispossession only. Therefore, the plaintiff is within time to seek the relief of Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.22 of 55 mesne profits.
10.4 No specific concrete evidence was led by the defendants to show anything to the contrary on the aspect of limitation. Whether or not the plaintiff is able to prove the allegations as made in the plaint is a completely different aspect and is not concerned with the issue of limitation. From the plaint, it is clear that the suit is within limitation.
10.5 This issue is thus, decided against the defendants and in favour of plaintiff.
11. ISSUE NO.2 Whether the suit is bad for non joinder of necessary parties?OPD 11.1 The onus to prove this issue was upon the defendants. Except for baldly mentioning in the written statement in one sentence that the suit is bad in law for non-joinder and mis- joinder of parties, the defendants have not mentioned anything regarding this aspect in the entire written statement or in the evidence led by them during trial.
11.2 The defendants have not even mentioned who were the other persons which should have been impleaded as parties to this suit, but were not included by the plaintiff in these proceedings. It is not the defence of the defendants that someone other than defendant no. 8 & 9 is the owner of the Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.23 of 55 suit property or has any other interest in the suit property and he/she should have been included. From the pleadings and the evidence led, it is not brought out who is the necessary party whose presence before the Court is necessary to enable the Court effectually and completely to adjudicate upon the controversy in this suit, but has not been impleaded. In these circumstances, there is nothing before this court to hold that the suit is bad for non-joinder of necessary party.
11.3 Accordingly, this issue is decided against the defendants and in favour of the plaintiff.
12. ISSUE No.3 Whether the suit has not been properly valued for the purposes of court fees? OPD 12.1 The onus to prove this issue was upon the defendants. Except for baldly mentioning in the written statement in one sentence that the suit has not been properly valued for the purposes of court fees, the defendants have not mentioned anything in the entire written statement or in the evidence led by them during trial in this regard.
12.2 The defendants have not even mentioned why they allege that the suit property has not been valued properly. They have not mentioned any approximate alternate valuation Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.24 of 55 of the suit and neither they have mentioned what ought to have been the correct valuation of the suit. The plaintiff valued the suit property at Rs.6.10 lacs and accordingly paid advolerum court fees for the relief of possession over the suit property. Similarly, she paid the advolerum court fees for the relief of mesne profits/damages as accrued till the date of filing the suit also. Thus the defendants have not highlighted how the suit has not been properly valued and never led any evidence to the effect that indeed the value of the suit property should be any short other than that mentioned in the plaint. Thus it is held that the suit has been properly valued.
12.3 Accordingly, this issue is decided against the defendants and in favour of the plaintiff.
13. ISSUE No.4 Whether the suit is barred by res-judicata?
OPD 13.1 The onus to prove this issue was upon the defendants. Except for baldly mentioning in the written statement in one sentence that the suit is barred by the principles of res- judicata, the defendants have not mentioned anything in the entire written statement or in the evidence led by them during trial on this aspect.
13.2 The defendants have not even mentioned which is the Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.25 of 55 other judgment delivered between the same parties in which the matter which is directly and substantially in issue in this case was earlier also directly and substantially in issue. No details of any such other suit have been provided in the entire written statement or evidence affidavit of the defendants. The defendants have only explained in para no.11 of the written statement that earlier the plaintiff had initiated proceedings under Section 145 Cr.P.C against the defendants before the Sub Division Magistrate (SDM) which were dismissed by the SDM. Now clearly the proceedings before the SDM under Section 145 Cr.P.C and the findings given in such proceedings cannot be equated with a civil suit and principle of res-judicata does not apply in such situation.
13.3 What is required for a suit to be barred under res- judicata is that the directly and substantially same issues should have already been decided in another civil suit. The defendants have not provided any detail of any other civil suit between the same parties in which the same issues have been decided. Thus, the defendants have failed to establish before the Court how this suit is barred by the principles of res- judicata.
13.4 Accordingly, this issue is decided against the defendants and in favour of the plaintiff.
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.26 of 55
14. ISSUE No.5 Whether the plaintiff is entitled for the decree of declaration as prayed for?OPP 14.1 The onus to prove the ownership of the suit property was upon the plaintiff. In order to secure this relief, the plaintiff had to establish that she is the legal owner of the suit property having purchased it, as alleged by her in the plaint. To establish her ownership, the plaintiff primarily relied upon the following documents:-
(i) The agreement of land dated 08.04.1983 (Ex PW2/1)
(ii) The Will dated 26.03.1988 (Ex PW2/2)
(iii) Receipt dated 17.06.1984 (Ex PW2/3)
(iv) Receipt dated 10.11.1985 (Ex PW3/2)
(v) Receipt dated 26.03.1988 (Ex PW3/3) Thus it need to be seen if the above documents have been duly proved by the plaintiff and whether, if proved, these documents indeed establish the ownership of the plaintiff over the suit property? In the paragraphs that follows each of the above document and its import on the right of the plaintiff will be discussed in detail.
14.2 The agreement of land dated 08.04.1983 (Ex PW2/1) -
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.27 of 55 This document has been purported by the plaintiff to be an agreement to sell and has been executed between the plaintiff and Sh. Dasrath @ Jasrath Singh. Contents of this document run into two short paragraphs and same are reproduced below:-
"... Agreement of land between Smt. Shakuntla Devi and Sh. Dasrath Singh of Village Mahipalpur, N.D.37 Received Rs.30,000/- (Rs. Thirty Thousand) from Smt. Shakuntla Devi W/o Sh. Umed Singh, Village & P.O. Mahipalpur, New Delhi-37 as part payment of Rs.70,000/- (Rs. Seventy Thousand) against land approx. 900 sq. yards half of khasra no. 539/1 with boundary wall and building as it is.
Rest Rs.40,000/- (Forty Thousand) will be paid in two equal installments with in one year. My land in Punjab Khore, approx. 7 Bighas, may be utilized for agriculture purpose until the above said amount is not paid. This land belongs to Sh. Umed Singh forefathers.
If not paid in one year the amount of Rs.15,000/- be forfeited..."
14.3 In view of the language as used in this doucment, the plaintiff and Sh. Dasrath @ Jasrath Singh entered into an agreement, with the plaintiff agreeing to purchase land measuring 900 sq. yards i.e. half of the Kh. no. 539/1 and the building as was built upon it for total consideration of Rs.70,000/- and Dasrath @ Jasrath agreeing to sell it. According to this document Rs.30,000/- (Rupees Thirty Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.28 of 55 Thousand only) was paid by the plaintiff on the date of execution of this document and the remaining Rs.40,000/- (Rupees Forty Thousand only) was to be paid in two installments on or before 08.04.1984 and if it was so not paid, out of the amount of Rs.30,000/- already paid by the plaintiff, Rs.15,000/- (Rupees Fifteen Thousand only) were to be forfeited by the seller i.e. Dasrath @ Jasrath. The language of this document makes it clear that it is obviously not a sale deed and parties only agreed to sell a property. It is settled law that no transfer of title can take place on the strength of such an agreement alone. There is no document on record to show that any other legally valid document transferring title in 900 sq. yds of land, out of khasra no.539/1 to the plaintiff was executed by Dasrath @ Jasrath. For rights in immovable property to be transferred an appropriate transfer deed must be created which admittedly in this case was not executed. Not only this, the averment in this document regarding some other land in Punjab Khore locality further creates a doubt on the exact nature of the document. It is not clear what do the parties wanted to be recoded in this document. This document itself shows that this land in Punjab Khore belongs to forefathers of the husband of the plaintiff. Then who is permitting the plaintiff to use this land? If Dasrath @ Jasrath is admitting in this document that the Punjab Khore land belongs to the ancestors of Umed Singh, he is no one to permit Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.29 of 55 the plaintiff to use it. If the averment regarding Punjab Khore land is by the other executant of the document i.e. plaintiff and the land belongs to her husband's ancestors, she had no right or business to permit Dasrath @ Jasrath to use it. Thus this whole document appears to be very vague and ambiguous.
14.4 Moreover, this alleged agreement is not even accompanied by the usual set of documents which were earlier prepared in routine when title was to be transferred in a property for which sale deed could not be executed ( such doucments usually are GPA, possession letter and Will all executed together). It is not to say that any title in any immovable property passed from one party to another by mere execution of such a so called complete set of documents, but it is only to highlight that even all such documents were never executed between the parties. This agreement is not accompanied by any possession letter, power of attorney or Will of even date in favour of the plaintiff. Therefore, this agreement to sell is grossly insufficient to establish that plaintiff acquired ownership rights in the suit property.
14.5 This 'agreement to sell' does not even properly describe the property intended to be transferred by this document. The boundaries of the property is not mentioned in this document. It is not even mentioned what are the landmarks surrounding Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.30 of 55 this property. The exact location in the big khasra, 539/1 is also not mentioned. Therefore, prima facie it does not appear from this document that the parties even had any clear intention to later execute a transfer deed on the terms of this so called 'agreement to sell.' 14.6 Further, according to the plaint, the plaintiff had purchased 625 sq. yards by way of this agreement (the suit property is stated to be 625 sq. yards only), whereas this agreement to sell mentions that 900 sq. yards of property is intended to be sold by this document. This again creates doubt on the agreement of the parties to transfer the property as it is not clear how much land whether 900 sq. yards or 625 sq. yards was sought to be transferred? If the plaintiff had purchased 900 sq. yards, it is not explained why in the plaint at paragraph 2, she has described the property purchased to be only 625 sq. yards and not 900 sq. yards. 275 sq. yards is a very huge piece of land and it was for the plaintiff to explain this discrepancy which she has nowhere explained.
14.7 Further, whereas in the plaint, the property has been described as property bearing no. "B-45/A", this description of the property is missing from this agreement. The plaintiff never filed any document to show that property no. B-45/A is indeed the same property which was purported to be sold by this agreement to sell and this number was given later on in Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.31 of 55 which year and by way authority was this number allotted. 14.8 This "agreement" is thus marred with factual and legal discrepancies and it cannot be said that the plaintiff secured ownership over the suit property through this alleged 'agreement to sell' Ex PW2/1.
14.9 Coming now to the second document i.e. Will dated 26.03.1988 (Ex PW2/2). Before further discussing this Will, it is important to discuss in brief the applicable law of wills as discussed by the Hon'ble Supreme Court in its various landmark judgments on this aspect. The law governing proof of a Will has been elaborated by the Hon'ble Supreme Court in H. Venkatachla Iyengar Vs B. N. Thimmajamma & Ors. AIR 1959 (SC) 4333 and Mrs. Joyce Primrose Prestor (Nee Vas) Vs Miss Vera Marie Vas & Ors. J.T. 1996 (4) (S) 333. In both these cases, the Hon'ble court has discussed in detail as to how a court should deal with matters of proof of Will. Besides other important points discussed at length in both these judgments, it has been categorically stated that courts would be justified in making a finding in favour of the propounder if the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law. Further, both these judgments provide that all surrounding legitimate suspicion around Will should be Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.32 of 55 completely removed before the document is accepted as the last Will of the testator. In Mrs. Joyce Primrose Prestor (supra) (where the Hon'ble court was dealing with holograph Wills) the Hon'ble Apex Court has also stated the following at para 15:-
"15. in applying the above general principles to particular cases, the nature of the Will, the pleadings of the parties in the case, facts admitted or proved and the presumptions available in law will have to be carefully given effect to...."
14.10 Further, in Raj Kumari & Ors Vs Surender Pal Sharma 2020 (2) Scale 549, the Hon'ble Supreme Court held as follows:-
"12.We would first expound the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act. Clause (c) of Section 63 of the Indian Succession Act reads as follows:
"63. Execution of unprivileged wills.--Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed (2013) 7 SCC 490 or engaged, or a mariner at sea, shall execute his will according to the following rules--
(a)-(b) *
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.33 of 55 presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
As per the mandate of clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator...."
"...13. The need and necessity for stringent requirements of clause (c) to Section 63 of the Indian Succession Act has been elucidated and explained in several decisions. In H. Venkatachala Iyengar v. B.N.Thimmajamma and Others. dilating on the statutory and mandatory requisites for validating the execution of the Will, this Court had highlighted the dissimilarities between the Will which is a testamentary instrument vis-à-vis other documents of conveyancing, by emphasising that the Will is produced before the court after the Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.34 of 55 testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and
(iv) that the testator had put his signature on the document of his own free will.
Ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts.
At the same time, this Court observed that it is necessary to remove suspicious circumstances surrounding the execution of the Will and therefore no hard and fast or inflexible rules can be laid down for the appreciation of the evidence to this effect..."
xxx xxx xxx
21. Majority of earlier judgments like Vishnu Ramkrishna (supra) follow the ratio in Dhira Singh (supra), with a few exceptions like Mt. Manki Kaur v.
Hansraj Singh and Others. The issue was resolved beyond controversy and debate in Janki Narayan Bhoir (supra) wherein it has been held that clause (c) of Section Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.35 of 55 63 of the Indian Succession Act requires and mandates attestation of a Will by two or more persons as witnesses, albeit Section 68 of the Evidence Act gives concession to those who want to prove and establish a Will in the court of law by examining at least one attesting witness who could prove the execution of the Will viz., attestation by the two witnesses and its execution in the manner contemplated by clause (c) to Section 63 of the Indian Succession Act.
However, where one attesting witness examined fails to prove due execution of the Will, then the other available attesting witness must be called to supplement his evidence to make it complete in all respects to comply with the requirement of proof as mandated by Section 68 of the Evidence Act. It was held:
"11. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. It is Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.36 of 55 clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will. Yet another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the will is to avert the claim of drawing adverse inference under Section 114 Illustration (g) of the Evidence Act. Placing the best possible evidence, in the given circumstances, before the Court for consideration, is one of the cardinal principles of the Indian Evidence Act. Section 71 is permissive and an enabling section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely an enabling section. It lays down the necessary requirements, which the court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility, cannot be let down without any other means of proving due execution by "other evidence" as well. At the same Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.37 of 55 time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go-by to the mandate of law relating to the proof of execution of a will." This judgment overruled the judgment of Manki Kaur (supra) and approved the ratio of Vishnu Ramakrishna (supra) to the effect that Section 71 of the Evidence Act can be requisitioned when the attesting witnesses who were being called have failed to prove the execution of the Will by reason of either denying their own signatures, denying the signature of the testator or due to bad recollection as to the execution of the document. Section 71 has no application when only one attesting witness who was called and examined has failed to prove the execution of the Will and the other available attesting witness was not summoned..."
14.11 All the above prepositions of law as laid down by the Hon'ble Apex Court have been applied to the present facts while arriving at the conclusion regarding the genuineness and proof of Will dated 26.03.1988.
14.12 Before further discussing this Will, it is important to mention here that this Will is not executed on the same date as the agreement to sell but rather it was executed much later in Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.38 of 55 1988 i.e. around five years after agreement to sell was executed.
14.13 There are various suspicious circumstances surrounding this Will and the plaintiff even after examining 16 witnesses and placing on record several documents could not clear the suspicion around this Will. First of all, it is not clear from this Will as to why the testator would will away such a valuable asset of his ancestral property to the plaintiff, who is only a distant relative, even to the exclusion of his own daughters and other near relatives. Secondly, it is also important to note here that in a connected criminal case between the parties (FIR No. 111/2000, PS Vasant Kunj) this Will was sent to the FSL for expert opinion regarding the signatures of Dasrath @ Jasrath / the testator of this Will. The FSL experts were given certain other admitted signatures of the testator (which were signatures put by the testator in the presence of Ld. Judge in Land Acquisition case) and after scientifically comparing the signatures, the FSL expert opined that the signatures on this Will were not made by the person who wrote the admitted signatures of Sh. Dasrath @ Jasrath. Thus, in the opinion of an independent,government appointed, FSL Scientific Expert, the signatures on this Will did not match with the admitted signatures of Sh. Dasrath @ Jasrath. The certified copy of the detailed report given by the Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.39 of 55 Senior Scientific Assistant (dated 06.04.2024) was placed on record as Ex. PW-7/D1. This document was exhibited from the court file of FIR No. 111/2000, PS Vasant Kunj and it is not the case of the defendants that no such FSL report was given by the government expert. This opinion of the FSL expert creates a very strong doubt on the genuineness of this Will as the FSL expert is very clear in his view that the signatures on this Will are not of Dasrath @ Jasrath. This Court is concsious of the fact that the FSL report is only an opinion of a handwriting expert, however, this opinion when read with all the surrounding suspicious circumstances surrounding this Will indeed carries much weight.
14.14 Another suspicious circumstance surrounding this Will is the existence of another Will by the same testator i.e. Dasrath @ Jasrath dated 20.07.1995 in favour of his two daughters. This second Will was challenged by the plaintiff/husband of the plaintiff vide CS (OS) 2327/2007 titled as Umed Singh Sehrawat & Anr. Vs Smt. Kela Devi & Ors. filed before the Hon'ble High Court of Delhi. This challenge did not survive and was decided against the husband of the plaintiff. Aggrieved of this order passed by the Hon'ble High Court, the husband of the plaintiff filed a regular first appeal bearing RFA (OS) No. 98/2009 titled as Umed Singh Sehrawat & Anr. Vs Smt. Kela Devi & Ors . This appeal was Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.40 of 55 also dismissed by the Hon'ble High Court on 08.05.2012. The dismissal of the appeal was further challenged by the husband of the plaintiff by filing a review petition before the Hon'ble High Court which review petition was also dismissed by the Hon'ble High Court. Not only this, the husband of the plaintiff also challenged this second Will dated 20.07.1995 by filing another suit before Ld. Civil Judge at Patiala House Courts. The plaint of this suit was rejected being barred by limitation vide order dated 22.09.2016 passed by the Ld. Civil Judge, which order has also attained finality. Thus, despite best efforts, the plaintiff (or her LRs) could not establish before the appropriate forum that the second Will which was executed much after the Will in dispute in this case, is not a genuine one. Thus, the existence of this second Will which is in favour of the real daughters of the testator is another challenge which the plaintiff could not over come while claiming ownership of the suit property on the basis of Will dated 26.03.1988.
14.15. Besides the above, even the contents of this Will also make for an interesting read. As per this Will, Sh. Dasrath @ Jasrath was the owner and in possession of the half share in land located in khasra no.539/1-2 even till the date of execution of this Will. Thus if this will, is to be believed (at all) no rights were transferred to the plaintiff by way of the agreement dated 08.04.1983 and even till 26.03.1988 when Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.41 of 55 this Will was allegedly executed, Dasrath @ Jasrath was the sole owner and also in possession of the suit property. The relevant portion of this Will is quoted below for clarity:-
"...WHEREAS, I am the owner and in possession in respect of ½ share (1-5), in the land bearing khasra no.539/1-2 situated within the limits of extended Lal Dora (Phirni) in the revenue estate of Village Mahipal Pur, New Delhi, with the free hold rights of land under the said property..." (emphasis supplied) On the other hand, as per the averments of the plaintiff in the plaint, she was in the possession of the suit property since 1983 and even raised construction of five rooms on it in 1984. Further, she got water and electricity connections in this property in 1985 and later constructed seven more rooms in this property by 1987 i.e. all before this will was executed in her favour. It is again reiterated that as per this Will Dasrath @ Jasrath was the owner in possession of the property till 1988. Thus, the case of the plaintiff being in possession from 1983 onwards is completely in contradiction with the averments in this Will upon which she relied at the time of filing of the suit.
14.16.Further, this Will is completely silent about the earlier agreement to sell and payments, if any, received by the testator and it appears that the bequeathing of asset as per this will is completely gratuitous! This is in complete Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.42 of 55 contradiction to the case of the plaintiff according to which she paid valuable consideration to own the property mentioned in this Will.
14.17.Not only the above, but what is also crucial is to record that even that this Will (for whatever it is worth) has not been duly proved by the plaintiff in evidence. A Will has to be proved in accordance with the Provisions of Section 68 of the Indian Evidence Act. Section 68 of the Indian Evidence Act, 1872 is reproduced below:-
"...68. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence : [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]..."
14.18.This Will could therefore have been proved only by the testimony of atleast one of the attesting witnesses. The plaintiff propounding this will or otherwise making a claim Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.43 of 55 under this will had to prove this will as per the law laid down by the Hon'ble Supreme Court which has already been discussed above.
14.19. To prove this Will, the plaintiff examined one attesting witness, to this Will i.e. Sh. Raj Pal Guliya as PW14. The testimony of this witness is thus the only testimony adduced to prove this will and therefore, his testimony and what he deposed (or did not depose) becomes very relevant and important for the decision on the proof of this Will. However, the examination of the entire chief and cross examination of this witness establishes that he has miserably failed to prove this Will.
14.20.This witness, PW14, has nowhere deposed in his entire testimony that in his presence, the testator had put his signatures on the Will or that he received from the testator a personal acknowledgment of his signature or mark on the Will. In his examination-in-chief this witness has not stated that he saw the testator sign the Will on any occasion or the testator gave him any information or personal acknowledgment of his signature or mark on the Will. The relevant portion of his testimony in this regard is reproduced below in his language:-
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.44 of 55 "...3. Mujhe vadi dwara suchit kiya gaha ki usne vaad sampati MCD no. B-45A Sh. Dasrath @ Jasrath se Rs.70,000/- mei kharidi thi ve pure rupay de diye gaye thae. Ve Dasrath @ Jasrath ne sabki raseede bhi di thi ve Dasrath @ Jasrath ne ek vasiyat dinak 26.03.1988 bhi banai thi. Jisemei mene dastakhat kiye thae Kashmere Gate Registrar Office mei..." (emphasis supplied) It is clear from his above testimony that this witness signed the Will only in the office of Registrar at the time when the Will was registered several years after its execution. He has nowhere stated in his deposition in chief or cross that he signed the Will when it was executed by the testator or that he saw the testator signing it. In his cross-examination also this witness only stated that he signed the Will at the house of the husband of the plaintiff and nothing more. Therefore, the vague testimony of this witness, where he conveniently forgot to mention about the testator signing the Will or acknowledging the same in his presence is grossly insufficient to prove the Will Ex PW2/2.
14.21.Another interesting aspect relating to this Will is that it was got registered by the plaintiff years after its execution and much after the death of testator. While indeed The Registration Act (Section 40/41) does permit such registration of Will, but in view of the above discussion, where this Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.45 of 55 witness has also not deposed having seen the testator sign the Will or having received any acknowledgment of his signature from the testator this delayed registration of the Will, ten years after the entire sale consideration was allegedly paid by the plaintiff and several years after the death of testator also raises suspicion on the genuineness and authenticity of this Will.
14.22.It is also important to note here that this witness to the Will is a close relative of the plaintiff (Smt. Shakuntla Devi) and according to averments at para no.3 of his affidavit, the plaintiff herself had informed him that she had purchased the suit property from Dasrath @ Jasrath for sale consideration of Rs.70,000/- after making complete payment. It is the own averment of this witness that the plaintiff told him that the receipts of the sale consideration were issued by Dasrath @ Jasrath. Thus, the neutrality of this witness is also doubtful. It is not natural that the the testator will only ask the relatives of the beneficiary of the will to be the witnesses to his will even though he had his own near family members residing in the same locality.
{ 14.23.All the above factors taken together lead to the singular conclusion that the Will Ex PW2/2 has not been proved by the plaintiff. Therefore, no reliance can be placed on it and it cannot be said that any title passed to the plaintiff by virtue of this document.
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.46 of 55 14.24.Coming now to the receipts dated 17.06.1984 (Ex PW2/3), Receipt dated 10.11.1985 (Ex PW3/2) and receipt dated 26.03.1988 (Ex PW3/3). These receipts also do not support the case of the plaintiff as mentioned in the plaint or the evidence lead on her behalf. As per the agreement to sell (Ex PW2/1) the total sale consideration of the property was Rs.70,000/- out of which Rs.30,000/- was paid on 08.04.1983 at the time of execution of the agreement to sell itself so only Rs.40,000/- were left to be paid by the plaintiff. On the other hand, if all the above receipts filed by the plaintiff and led in evidence by her husband (LR No. 1) are seen together, the plaintiff paid much more than Rs.70,000/- to Sh. Jasrath @ Dasrath. To explain clearly -
(i) Rs.50,000/- was paid by the plaintiff on 17.06.1984 vide a receipt executed on the even date (Ex PW2/3).
(ii) Then Rs.15,000/- was paid on 10.11.1985 vide a receipt executed on the even date (Ex PW3/2)
(iii) Then another Rs.5000/- was paid on 26.03.1988 vide a receipt executed on the even date (Ex PW3/3).
14.25.Thus the plaintiff admittedly paid Rs.70,000/- + Rs.30,000/- to Dasrath @ Jasrath Singh for the property which she had agreed to purchase only for Rs.70,000/-. It is not explained why the plaintiff would pay such an excessive amount over and above the terms of the agreement and what Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.47 of 55 was the reason or occasion to make such excessive payments? It is not the case of the plaintiff anywhere that the terms of agreement to sell were later modified by another written agreement between the parties and the sale consideration was mutually increased. Therefore these receipts when read together further create a dent in the case of the plaintiff regarding the genuineness and existence of agreement to sell the suit property for Rs.70,000/- as alleged in this suit. This also lends credibility to the case of the defendant that these receipts are not genuine and are created by the plaintiff only to substantiate her case. During the course of the arguments, Ld. Counsel for the plaintiff tried to read the receipt dated 17.06.1984 in a manner which could lead to the conclusion that indeed this receipt was not for Rs.50,000/- but was for Rs.20,000/- paid on 17.06.1984. Howevr, this reading by the Ld. Counsel for the plaintiff is not supported by the plain language of this receipt. The receipt and its translation were both filed on record by the plaintiff only (under her own signatures). The receipt and its translation was filed by the plaintiff at the time of filing of the suit on 17.04.2001 itself and never in the last more than 20 years with the plaintiff even question the translation which was filed by her on record. The wordings of the receipt dated 17.06.1984 are therefore, to be taken on their face value and they have to be read and given the meaning which is conveyed by the simple words used in Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.48 of 55 this receipt and cannot be ascribed the meaning which the Ld. Counsel for the plaintiff wanted to attribute to it. Thus, the receipts relied upon by the plaintiff also do not support her claim of ownership over the suit property.
14.26.In view of the discussion above, it is clear that none of the documents relied upon by the plaintiff to support her title or ownership over the suit property are of any use to her. In other words none of these documents establish the transfer of any title in the suit property to the plaintiff. Thus, the plaintiff is not found entitled to declaration of ownership with respect to the suit property as she has failed to establish her title over the same on the strength of the documents relied by her.
14.27.Accordingly, plaintiff is not found entitled to the relief of declaration of ownership as sought for in the plaint. Thus, this issue is decided against the plaintiff and in favour of the defendants.
15. ISSUE No.6 Whether the plaintiff is entitled for the decree of possession as prayed for?OPP 15.1 The onus to prove this issue was upon the plaintiff. The plaintiff has claimed re-possession over the suit property on the basis of her ownership. As held in issue no.5, she is unable Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.49 of 55 to establish her ownership over the suit property, therefore, her claim for re-possession also becomes very weak one.
15.2 Whereas the LRs of the plaintiff have filed several documents and examined several witnesses to show the possession of the plaintiff in the suit property, however out of these documents, only a very few documents, pre-date the alleged date of dispossession of the plaintiff from the suit property and are even worth a discussion at this juncture (these documents shall be discussed in detail a little later in this judgment).
15.3 Rest of the documents relied upon by the LRs of the plaintiff were created much after the alleged date of dispossession of the plaintiff. For instance, all the documents pertaining to payment of water charges (Ex PW6/B) are only for the period after the year 2000. When it is the own case of the plaintiff that she was dispossessed from the property on 04.08.1998 any document of payment of any sort of bill of any amenity after 04.08.1998 does not in any way establish her possession over the suit property. Similar is the position with respect to the BSES documents filed by the plaintiff. Most of these documents are in the name of Mr. Ajay Sehrawat, one of the sons of the plaintiff and are for the period after August, 1998. Some documents like documents marked as Mark B to F (originals of which were never produced) in the testimony of the Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.50 of 55 husband of the plaintiff/ LR no.1 are indeed in the name of deceased plaintiff also, but none of these water/electricity bills are for the period before August, 1998. Therefore, these documents do not establish the continuous possession of the plaintiff in the suit property. Not only this in the documents Mark C and Mark D no details of the properties to which these bills pertains have been mentioned. It is for the first time for the year 1999 when suddenly the electricity bills start reflecting the property no. B-45 i.e. only in the bills issued after the alleged date of dispossession.
15.4 The only documents pre-dating the admitted date of dispossession of the plaintiff are those pertaining to purchase and installation of submersible pump set. These documents are Ex PW9/2, Ex PW3/13, Ex. PW3/14 and Ex. PW3/15. Now, these documents even if they are taken on their face value only show that the plaintiff at best, purchased and got installed a submersible pump set in somewhere in the land in khasra no. 539/1, Mahipalpur Delhi. Now admittedly the said khasra number is a huge one and consists of much area even other than the suit property. Even assuming that the plaintiff did purchase and install a pump set some where in the said khasra number, it does not prove that she installed the same in the suit property only. The suit property is only a specific portion out of the entire khasra. These document do not show Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.51 of 55 that the pump was purchased and installed in the suit property by the plaintiff. It is not to say that mere purchase and installation of a pump set in a property is sufficient proof of possession over the same.
15.5 Similar is the fate of the building material receipts (Ex PW3/12 (colly)) filed by the plaintiff. Mere purchase of some odd building material and mentioning the khasra number in the purchase receipt of such material, as issued by the material supplier, does not establish that the plaintiff was in possession of the exact portion of khasra no. 539/1-2 of which she has sought re-possession in this suit.
15.6 Here it is important to mention that it is the admitted case of both the sides that indeed the forefathers of both the parties were permanent residents of the same locality and owned different parts of khasra No. 539/1-2. Thus, the husband of the plaintiff indeed had ownership rights over some portions of khasra no. 539/1-2 by virtue of succession. The husband of the plaintiff (LR No. 1) has admitted in his cross examination on 09.01.2014 that the khasra no. 539/1 was earlier was the joint property of his father and Sh. Jasrath @ Dasrath. Thus it is only natural that after the death of his father the husband of the plaintiff got some rights in some portion of khasra no. 539/1-2 and thus he had access and Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.52 of 55 possession of some portion of khasra No. 539/1-2. Therefore, in the peculiar facts of this case mere mentioning of khasra number in the building material receipt does not establish that the plaintiff was in possession of the suit property and that she has raised any construction in it.
15.7 There is a single MCD issued document dated 30.01.1988 which does mention the name of the plaintiff and the property number as RZ-B 45A, Mahipal Pur. However, this singular notice issued by the House Assessment Department is not sufficient to say that the plaintiff has established her possession over the suit property in view of the lack of other relevant documents and the entire discussion above as to how the plaintiff failed to prove her ownership over the suit property despite it been her case from the beginning that she was the owner in possession of the suit property.
15.8 No other document has been filed by the plaintiff which can show her continuous possession in the suit property from 1983 to 1988.
15.9 In view of the discussion above, it is held that the plaintiff failed to prove that she was in settled possession of the suit property from 1983 till 04.08.1998. When the Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.53 of 55 possession of the plaintiff remains unproved no further discussion on her alleged dispossession is warranted. It is thus held that the plaintiff is not entitled to the possession over the suit property.
15.10 This issue is accordingly decided against the plaintiff and in favour of the defendants.
16. ISSUE No.7 Whether the plaintiff is entitled for damages. If yes, at what rate and for what period?OPP 16.1 In view of the findings as given in issue No. 5 and 6, above, the plaintiff is not found entitled to any damages / mesne profit from the defendants.
16.2 This issue is accordingly decided against the plaintiff and in favour of the defendants.
17. RELIEF 17.1 In view of the findings given in issue no.4,5 and 6 above, the plaintiff is not found entitled to any relief.
17.2 The suit of the plaintiff is accordingly, dismissed. No order as to cost.
Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.54 of 55 17.3 Original documents, if any, be returned to the concerned parties, as per rules. Decree sheet be prepared accordingly.
17.4 File be consigned to record room after completion of necessary formalities.
Announced in the open MONIKA Digitally signed by MONIKA SAROHA Court on 30.08.2024 SAROHA Date: 2024.08.31 16:56:32 +0530 [MONIKA SAROHA] DISTRICT JUDGE-05 (WEST)/THC/30.08.2024 Civ DJ 607938/16 Shakuntla Devi (deceased) Vs Shiv Narain Page no.55 of 55