Delhi District Court
Kusum Dewan (Deceased) vs Vishwanath Dewan on 12 March, 2025
IN THE COURT OF MS GOMA DABAS GUPTA
DISTRICT JUDGE-06 : WEST DISTRICT :
TIS HAZARI COURTS : DELHI
CS NO.7664/16
CNR NO.DLWT01-000001-1990
SH VASHESHAR NATH DEWAN
(DECEASED, through LRs)
(a) Smt Kusum Dewan
W/o Late Sh Vasheshar Nath Dewan
( the suit stands dismissed as withdrawn vide
order dated 03.05.2006)
(b) Smt Nisha Sawhney
W/o Sh Rakesh Sawhney
R/o I-41, Jangpura Extension
New Delhi-110014
.........PLAINTIFF
VERSUS
SH VISWA NATH DEWAN
(DECEASED, through LRs)
(a) Smt Pushpa
(her name already deleted vide order dated 07.11.2013)
(b) Sh Bhushan Dewan
S/o late Sh Vishwa Nath Dewan
R/o I-41, Ground Floor,
Jangpura Extension, New Delhi-110014
(c) Smt Usha Kapoor
W/o Sh Y P Kapoor
R/o I-41, Ground Floor,
Jangpura Extension,
New Delhi-110014
.......DEFENDANTS
CS NO.7664/16 & CS No. 7665/16 Page No. 1 /94
DATE OF INSTITUTION : 25.10.1990
DATE RESERVED FOR JUDGMENT : 06.03.2025
DATE OF JUDGMENT : 12.03.2025
-----------------------------------------------------------------------------------
AND
CS NO. 7665/16
CNR NO. DLWT01-000002-2003
1. KUSUM DEWAN
W/o Late Sh Vasheshar Nath Dewan
( the suit stands dismissed as withdrawn vide
order dated 03.05.2006)
2. Smt Nisha Sawhney
W/o Sh Rakesh Sawhney
R/o I-41, Jangpura Extension
New Delhi-110014
..........PLAINTIFF
VERSUS
SH VISWA NATH DEWAN
(DECEASED, through LRs)
(a) Smt Pushpa
(her name already deleted vide order dated 07.11.2013)
(b) Sh Bhushan Dewan
S/o late Sh Vishwa Nath Dewan
R/o I-41, Ground Floor,
Jangpura Extension, New Delhi-110014
(c) Smt Usha Kapoor
W/o Sh Y P Kapoor
R/o I-41, Ground Floor,
Jangpura Extension,
New Delhi-110014
..........DEFENDANTS
CS NO.7664/16 & CS No. 7665/16 Page No. 2 /94
DATE OF INSTITUTION: 25.03.2003
DATE RESERVED FOR JUDGMENT: 06.03.2025
DATE OF JUDGMENT: 12.03.2025
JUDGMENT
1. Vide this common judgment, I shall decide Suit No. 7664/16
for possession and mesne profits filed by the plaintiff against
the defendant titled as “Sh. Vasheshar Nath Dewan Vs. Sh.
Vishwa Nath Dewan” (hereinafter referred to as ‘main case’)
and Suit No. 7665/16 for recovery titled as “Smt. Kusum
Dewan and Anr. Vs. Sh. Vishwa Nath Dewan” (hereinafter
referred to as ‘connected case’).
Plaintiff’s Case
2. The brief facts as per the plaintiff’s case are :
(i) That the plaintiff and the defendant were real brothers and
sons of Late Sh. Dina Nath Dewan. That the plaintiff and the
defendant are deceased now and are represented by their
respective legal representatives.
(ii) That the plaintiff was allotted Plot No. I-41, Jangpura
Extension, New Delhi (hereinafter referred to as ‘suit property’)
by the Ministry of Rehabilitation in the year 1950-51. The
plaintiff started construction of the said plot after taking
possession and constructed 2 ½ storey house on the said plot out
of his own funds and savings which got completed during the
period 1951-1955.
CS NO.7664/16 & CS No. 7665/16 Page No. 3 /94
(iii) That late Sh. Dina Nath Dewan, father of the plaintiff got
some blank papers signed from the plaintiff and on the said blank
papers got forged and fabricated agreement dated 18.09.1957
giving share in the property to the defendant.
(iv) That the father of the parties died in the year 1973 and
during his life time, the plaintiff and the defendant were residing
jointly with their parents on the first floor of the suit property.
The ground floor of the suit property was occupied by a tenant
and the plaintiff used to collect rent from the tenant being the
owner and landlord of the premises. The tenant vacated the
ground floor of the suit property in the year 1972 and upon the
death of the father of the parties, the defendant shifted to the
ground floor of the suit property as a gratuitous licensee by way
of permissive possession out of natural love and affection. The
plaintiff continued to be in possession of first floor and second
floor of the suit property.
(v) That the plaintiff has been making payment of house tax
to the Corporation on the basis of title of suit property in favour
of plaintiff.
(vi) That on 30.12.1985, a Lease Deed has been executed in
favour of the plaintiff on behalf of President of India by way of
which the plaintiff became absolute owner of the suit property.
(vii) That the defendant continued to live in the ground floor
of the suit property. However, the intention of the defendant
CS NO.7664/16 & CS No. 7665/16 Page No. 4 /94
became dishonest and he filed a suit against the plaintiff for
declaration and partition of the suit property bearing Suit No.
2097/1989. It is pertinent to mention that during the pendency of
the present suit, the said Suit No. 2097/1989 has been decided in
the year 2000 vide order dated 15.07.2000.
(viii) That the defendant is an unauthorised occupant of the suit
property and hence the present suit has been filed for possession
and mesne profits.
(ix) The wife and the daughter of the plaintiff have filed the
connected case No.7665/16 after the demise of the plaintiff for
damages @ Rs. 4000/- per month for a period w.e.f. 22.03.2000
to 21.03.2003 from the defendant.
Written Statement
3. The written statement was filed by the defendant in the present
matter which was later on being amended, as per law.
According to the written statement, the defendant has prayed
for dismissal of the plaintiff’s suit and awarding of special
compensatory cost u/s 35 A of CPC in favour of defendant.
Defendant’s case in brief as follows :
(i) The defendant has taken a preliminary objection that
since he had filed a suit for partition against the plaintiff, the
present suit was liable to be stayed u/s 10 of CPC.
(ii) That the construction of the suit property was raised from
the funds of father of the parties and also that part contribution ofCS NO.7664/16 & CS No. 7665/16 Page No. 5 /94
funds towards ground rent was also made by the father of the
parties.
(iii) The deceased plaintiff had written a letter dated
01.11.1957 to the Housing and Rent Officer, Delhi Estate, Delhi
and thereby requested adjustment of the amounts on ground rent
to be recovered against claimed compensation due to his father
which was replied by the office of the Settlement Commissioner
in the name of father of the parties vide letter dated 01.10.1960
thereby requesting adjustment of the amount of Rs. 508.06 in
respect of ground rent of the suit property allotted jointly to his
sons i.e. the deceased plaintiff and the deceased defendant vide
letter dated 24.08.1955 by Ministry of Rehabilitation. It is
submitted by the defendant that since the construction of the suit
property was raised from the funds of parents of the parties and
that the ground rent was adjusted from the claim compensation
due to the father of the parties, the suit property became ancestral
property of the parties thereby making the defendant a co-owner
of the suit property.
(iv) The defendant has also submitted that the suit of the
plaintiff is barred u/s 53 A of Transfer of Property Act.
(v) It is further submitted by the defendant that the wife of
the deceased plaintiff, Smt. Kusum Dewan, moved an
application before this Court thereby withdrawing her power of
attorney in favour of Rakesh Sawhney and for the attorney
executed in favour of her Counsel Sh. Y.P. Ahuja vide
CS NO.7664/16 & CS No. 7665/16 Page No. 6 /94
application dated 31.05.2004 whereby she also admitted that the
defendant is co-owner in the suit property. Subsequent to that,
Smt. Nisha Sawhney, daughter of deceased plaintiff, moved an
application under Order XXII Rule 10 of CPC thereby informing
that Smt. Kusum Dewan had relinquished her share in the suit
property in favour of Ms. Nisha Sawhney vide Relinquishment
Deed dated 31.03.2004. It is submitted by the defendant that the
families of the parties were enjoying the suit property being the
co-owners, but after the marriage of Smt. Nisha Sawhney,
daughter of the deceased plaintiff, the disturbance in the family
was created by son-in-law of the deceased plaintiff in order to
unlawfully grab the suit property.
(vi) The defendant has also submitted that Smt. Nisha
Sawhney and her husband played a fraud and got prepared
fabricated documents in respect of the suit property including the
land underneath from Smt. Kusum Dewan without permission
from the Court.
(vii) It is submitted by the defendant that in terms of the
registered Agreement dated 18.09.1957, the deceased plaintiff
and the defendant are entitled to 50% share each in the suit
property which was also acted upon by the parties.
4. In the written statement filed by the defendant in the connected
case, the defendant has prayed for dismissal of plaintiff’s suit
on the ground that the suit filed by the plaintiffs is not
CS NO.7664/16 & CS No. 7665/16 Page No. 7 /94
maintainable as the defendant is the co-owner in the suit
property to the extent of 50% share in the suit property and is
thus not liable to pay any damages. The defendant has taken
other defences which are mentioned herein above in the main
suit and has prayed for dismissal of the connected case.
5. Plaintiff has filed replication to the Written statement of
defendant in the main case file and also in the connected case
wherein she has reiterated the contents of the plaint.
6. Upon completion of pleadings, issues were framed on different
dates and the same have been now consolidated and
renumbered as follows:
1. Whether the plaintiff is owner of the property in dispute? OPP
2.Whether the plaintiff is entitled to a decree of possession as
prayed? OPP
3. Whether the defendant is co-owner of the property in dispute
in view of letter issued by Ministry of Urban, Government of
India dated 24/08/1955? OPD
4. Whether the suit is filed without any cause of action? OPD
5. Whether the registered agreement dated 18/09/1957 is no
agreement in the eyes of law and is fabricated document as
alleged? OPP
6. Whether the suit property bearing number I-41, Jangpura
Extension , New Delhi is ancestral property of the parties as
stated in the written statement? OPD
7. Whether the suit is barred under the provision of section 53 A
of transfer of property act? OPD
8. Whether the suit is not maintainable in view of withdrawal of
the same by the plaintiff no 1 Smt Kusum Dewan vide order
dated 03/05/2006 of this court? OPDCS NO.7664/16 & CS No. 7665/16 Page No. 8 /94
9. Whether the plaintiff is entitled to recover the Mesne profits, if
so, at what rate and to what amount? OPP
10. Relief.
7. In the connected case, the following issues have been framed :-
1. Whether the plaintiff is owner of the property in dispute?
2. Whether the defendant is co-owner of the property in
dispute in view of letter issued by Ministry of
Rehabilitation, Government of India dated 24/08/1955?
3. Whether the suit is without any cause of action?
4. Whether the agreement dated 18/09/1957 is a fabricated
document?
5. Whether the plaintiff is entitled to the relief claimed?
6. Relief.
Plaintiff’s Evidence
8. The plaintiff has examined 3 witnesses.
(i) PW1 is Sh Prem Singh, Inspector, house tax Department who
brought the summoned record of the suit property.
(ii) PW-2 Sh Dinesh Sharma, Clerk Khatri /Urban Cooperative
Bank, Darya Ganj Branch, New Delhi, Ansari Road. (summoned
witness). He has brought original lease deed of property no. I-41,
Jangpura Extension, New Delhi. Certified copy of said lease
deed is Ex.PW2/1.
(iii) PW 3 is Shri Rakesh Sawhney who is the power-of-attorney
holder on behalf of LRs of the deceased plaintiff, who is the son
in law of the deceased plaintiff no.1 and husband of plaintiff
no.2. He was examined by way of affidavit Ex.P-3. He has relied
CS NO.7664/16 & CS No. 7665/16 Page No. 9 /94
upon the following documents:-
i) GPA on behalf of plaintiff in favour of deponent/PW3,
same is Ex.PW3/1
ii) Site plan is Ex.PW3/2
iii) Certified copy of order dated 15.07.2000, passed by Bimla
Makin, the then ADJ is Ex.PW3/3
iv) Copy of plaint in suit no. 2097/1989 is Ex.PW3/4,
v) Letter dated 06.03.2012 is Ex.PW3/11.
PW-3 tendered his additional evidence by way of affidavit as
Ex.PW3/2 on 14.02.2024. He has further relied upon following
documents:-
i) Photocopy of order dated 23.08.1999 of Hon’ble High
Court of Delhi is Ex.PW3/10
ii) letter addressed to Sh Vasheshar Nath Dewan by MCD is
Ex.PW3/11 (OSR)
iii) site plan sanctioned by MCD is Ex.PW3/12 (also
exhibited as Ex.DW1/DX2)
iv) Ex.PW3/14 is relinquishment deed dated 31.03.2004
ii) Conveyance deed dated 25/02/2007 executed in favour of
Ms Nisha Sawhney is Ex.PW3/15 (OSR)
During cross examination of PW-3, following documents were
also exhibited:-
i) Legal opinion given by officers of L & DO dt 30.11.2000
is Ex.PW3/DX1CS NO.7664/16 & CS No. 7665/16 Page No. 10 /94
ii) Agreement dated 18.09.1957 in URDU is Ex.PW3/DX2
(also mark DB), also as Ex.DW2/1 and Ex.DW1/3
iii) Urdu document in the name of Dina nath Ex.PW3/DX3
iv) Letter dated 01.11.57, letter to Housing and Rent officer
and letter dated 01.10.1960 to department Ex.PW3/DX4,
Ex.PW3/DX5 and Ex.PW3/DX7
v) Ex.PW3/DX6 is letter issued by Ministry of Rehabilitation
to Sh Deena Nath Dewan
vi) Letters for allotment of plot are Ex.PW3/DX8 to
Ex.PW3/DX10
vii) Ex.PW3/DX11 is final notice dated 16.01.1979
viii) Rent deeds Ex.PW3/DX12,
ix) Document Ex.PW3/DX13 is letter dated 31.10.1955
x) Account containing alleged construction written by father
of defendant, Ex.PW3/DX14, colly and the diary
alongwith translated copy (inadvertently mentioned as
Ex.PW3/14)
xi) Ex.PW3/DX15 are documents ie passbook of Deena Nath
and other two documents
xii) Ex.PW3/DX16 is certificate dated 03.08.2016
Defendant’s evidence
9. The defendant has examined total 9 witnesses.
DW1, Shri Bhushan Dewan, son of the deceased defendant was
CS NO.7664/16 & CS No. 7665/16 Page No. 11 /94
examined as DW-1 whose evidence by way of affidavit is
Ex.DW1/A. He has relied upon 47 documents where are
mentioned below:-
Ex.DW1/1 is letter dated 16.10.1947, Ex.DW1/2 is letter dated
24.08.1955 (DE), Ex.DW1/4 is lease deed dated 25.10.1953,
(also as Mark DE) Ex.DW1/5 is lease deed dated 01.03.1954
(Mark DI), Ex.DW1/6 is lease deed dated 03.01.1962 (mark
DG), Ex.DW1/7 is lease deed dated 05.01.1963 (Mark DH),
Ex.DW1/8 is lease deed dated 01.04.1963 (also as mark DC)
Ex.DW1/9 is lease deed dated 02.07.1963, (also as mark DF)
Ex.DW1/10 is lease deed dated 27.11.1963, (also as mark DD)
Ex.DW1/11 is letter dated 01.10.1960, Ex.DW1/15 are the MCD
receipts, Ex.DW1/16 is Form-B, receipt of House tax receipt.
The original registered agreement dated 18.09.1957 which was
already Ex PW3/DX2 and the same is Ex DW1/3 in the evidence
affidavit. Similarly, certificate of agricultural land distribution
and khatauni as well as conveyance deed dated 22.07.1952 of the
land was already Ex PW3 / DX15 (Colly) and the same is also
Ex DW1/12 (colly ) in the evidence affidavit. The copies of three
diaries were already Ex PW3/14 (colly) and the same is also Ex
DW1/13 (colly) in the evidence affidavit. The passbook of
Imperial Bank of India was already Ex PW3/DX15 (colly) and
the same is also Ex DW 1/14 (colly) in the evidence affidavit.
The notice issued by the Wealth Department to the deceased
defendant is Ex DW1/17(colly) running into 13 pages. The copy
CS NO.7664/16 & CS No. 7665/16 Page No. 12 /94
of appeal is Ex DW1/18 and the report/assessment order of the
Wealth / Income tax Department is Ex DW1/19 (running into
two pages). The valuation report of the property in question is Ex
DW1/20 (colly) (running into 11 pages). Copy of complaint
dated 07.03.2001 made to the Cabinet Secretariat / public
grievance cell is Ex.DW1/21. Copy of complaint dated
07.03.2001 made to Central vigilance commissioner is Ex
DW1/22. Copy of complaint dated 29.03.2000 made to Urban
Development Minister is EX DW1/23. Copy of complaint dated
10/22.04.1985 made to Commissioner MCD is Ex.DW1/24
(consist of 2 pages). Copy of complaint dated 18.06.1985 made
to Deputy Assessor and Collector and MCD is
Ex.DW1/25(consist of 2 pages) (inadvertently on the document
it is mentioned as Ex.DW1/26) Copy of complaint dated
23.12.1985 made to the Commissioner, MCD is
Ex.DW1/26(consist of 2 pages). Copy of complaint dated
23.12.1985 made to Lt. Governor Delhi is Ex DW1/27. Copy of
complaint dated 07.02.1986 made to assessor and collector is
Ex.DW1/28. Ex.DW1/29 in my affidavit is de-exhibited as the
same is repetition of Ex DW1/28. Letter dated 25.07.1985
written by deceased defendant to L&DO is Ex DW1/30, the
letter dated 25.10.1985 written by deceased defendant to L&DO
is Ex.DW1/31, The letter dated 15.09.1987 written by deceased
defendant to Ministry of Urban Development is Ex DW1/32, The
letter dated 15.09.1987 written by deceased defendant to L&DO
CS NO.7664/16 & CS No. 7665/16 Page No. 13 /94
is Ex DW1/33. The letter dated 06.12.1999 written by deceased
defendant to L&DO is Ex DW1/34. The letter dated 15.02.2000
written by deceased defendant to L&DO is Ex DW1/35. The
letter dated 19.05.2000 written by deceased defendant to L&DO
is Ex DW1/36. The letter dated 10.07.2000 written by deceased
defendant to Dr Rajesh Kumar, L&DO is Ex DW1/37. The letter
dated 09/14.08.2000 written by deceased defendant to L&DO is
Ex DW1/38(consist of 2 pages). The letter dated 06.09.2000
written by deceased defendant to the O/o CVC is Ex
DW1/39(consist of 4 pages). The letter dated 30.08.2000
received by deceased defendant from Govt of India, Cabinet
Secretariat, Public grievance is Ex DW1/40. The letter dated
24.08.2000 written by deceased defendant to Hon’ble Minister of
Urban Development, Govt of India is Ex DW1/41(consist of 3
pages). Copy of letter 30.11.2000 written by Sh S S Chahar ,
Additional Legal Advisor is EX DW1/42(consist of 2 pages) (the
present document is on the record of Case title as Smt Kusum
Diwan Vs Vishwanath Diwan connected with the present case) .
The notice dated 21.12.1989 issued by Advocate Sh B B Gupta
to the L&DO is Ex DW 1/43(consist of 2 pages) (the present
document is on the record of Case title as Smt Kusum Diwan Vs
Vishwanath Diwan connected with the present case). In response
of Ex DW1/43 a letter was sent by Sh Keshav Das on 02.07.1997
to deceased defendant, same is Ex DW1/44, Notice dated
06.12.2000 issued to both deceased plaintiff and deceased
CS NO.7664/16 & CS No. 7665/16 Page No. 14 /94
defendant is Ex DW1/45. Copy of the structure Engineer report
dated 03.08.2016 was already Ex PW3/DX16 and the same is
also Ex DW1/46 in my affidavit. Photographs consist of 40
pages is Ex.DW1/47(colly)” receipt of payment of house tax is
Ex.DW1/DX1, colly, sanctioned plan is Ex.DW1/DX2 and letter
dated 26.08.2003 issued by L& DO, Ex.DW1/DX3.
10. DW2, Shri Sevajit is the record attendant, from Department of
Delhi Archives who brought the original registered agreement
dated 18/09/1957, same is Ex.DW2/1.
11. DW3 Shri Devender Prasad Singh is LDC, SDMC property tax
Department, Assessment and Collection Department who
brought the summoned record that is, house tax record
pertaining to the suit property as Ex.DW3/1 (colly, 4 pages,
OSR).
12. DW4, Sh B Pal, Consultant Land and Development Office,
Ministry of Housing and Urban Development who brought
various correspondence letters between the parties and the
concerned department. Same are mentioned herein below:-
The notice dated 21.12.1989 sent by Sh BB Gupta, Advocate, is
Ex DW4/1 (Consisting of 2 pages- OSR), same was already
exhibited as EX DW1/43. The letter dated 30.08.2000, copy of
same is Ex.DW4/2 (OSR), same was already exhibited asCS NO.7664/16 & CS No. 7665/16 Page No. 15 /94
Ex.DW1/40. The letter dated 24.08.2000, copy of same is
Ex.DW4/3 (consisting of three pages-OSR), same was already
exhibited as Ex.DW1/41. The letter dated 15.09.1987, copy of
same is Ex.DW4/4 (OSR), same was already exhibited as
Ex.DW1/32. The letter dated 06.12.1999, copy of same is
Ex.DW4/5 (OSR), same was already exhibited as Ex.DW1/34.
The letter dated 09/14.08.2000, copy of same is Ex.DW4/6
(consisting of two pages – OSR)., same was already exhibited as
Ex.DW1/38. The letter dated 13.12.2000, copy of same is
Ex.DW4/7 (OSR), the letter dated 15.09.1987, copy of same is
Ex.DW4/8 (OSR), same was already exhibited as Ex. DW1/33.
The letter dated 15.02.2000, copy of same is Ex. DW4/9 (OSR).
Same was already exhibited as Ex.DW1/35. The letter dated
19.05.2000, copy of same is Ex.DW4/10 (OSR), same was
already exhibited as Ex.DW1/36. The letter dated 10.07.2000,
copy of same is Ex.DW4/11 (OSR), same was already exhibited
as Ex.DW1/37. The letter dated 29.03.2001, copy of same is
Ex.DW4/12 (OSR), same was already exhibited as Ex.DW1/23.
The letter dated 06.12.2000, copy of same is EX DW4/13 (OSR),
same was already exhibited as Ex.DW1/45. The letter dated
21.12.2000, copy of same is Ex.DW4/14 (consisting of two
pages OSR). The letter dated 27.12.2000, copy of same is
Ex.DW4/15 (consisting of two pages – OSR). The letter dated
19.01.2001, copy of same is Ex.DW4/16 (OSR). The letter dated
22.02.2001, copy of same is Ex.DW4/17 (OSR). The letter dated
CS NO.7664/16 & CS No. 7665/16 Page No. 16 /94
07.08.2001, copy of same is Ex.DW4/18 (consisting of two
pages-OSR). The letter dated 19.09.2001, copy of same is
Ex.DW4/19 (consisting of two pages – OSR). The letter dated
07.11.2001, copy of same is Ex.DW4/20 (OSR). The letter dated
17.10.2001, copy of same is Ex.DW4/21 (OSR). The letter dated
19.11.2001, copy of same is Ex.DW4/22 (consisting of two
pages-OSR). The letter dated 19.03.2002, copy of same is
Ex.DW4/23 (OSR). The letter dated 26.08.2003, copy of same is
Ex.DW4/24 (OSR). The letter dated 09.07.2003, copy of same is
Ex.DW4/25 (consisting of two pages – OSR). The letter dated
03.09.2003, copy of same is Ex.DW4/26 (consisting of two
pages-OSR). The letter dated 03.09.2003, copy of same is
Ex.DW4/27(consisting of two pages – OSR). The letter dated
08.02.2000, copy of same is Ex.DW4/28 (OSR). The letter dated
01.12.2000 copy of same is Ex.DW4/29 (consisting of two pages
– OSR). Letter dated 09.11.1957, copy of same is Ex.DW4/30
(OSR). The letter dated 01.11.1957, copy of same is Ex.DW4/31
(OSR). The letter dated 31.10.1955, copy of same is Ex. DW4/32
(OSR). The letter dated 17.10.1955, copy of same is Ex.DW4/33
(OSR), same was already exhibited as EX DW3/DX10. The
letter dated 24.08.1955, copy of same is EX DW4/34 (OSR),
same was already exhibited as Ex.DW1/2. The letter dated
20/22.06.1953, copy of same is Ex.DW4/35 (OSR). Same was
already exhibited as EX DW3/DX9.
CS NO.7664/16 & CS No. 7665/16 Page No. 17 /94
13. DW5, Shri Narendra kumar, AZI from the office of Assessor
and Collector house tax Department who brought the original
letters of correspondence, which are as follows:-
The original letter dated 10-22.04.1985, attested copy of same is
Ex.DW5/1 (OSR). The letter dated 18.06.1985 is
Ex.DW5/2(OSR). The letter dated 23.12.1985 is Ex.DW5/3
(OSR) (objected to regarding the mode of proof). The letter
dated 10.04.1985 is Ex.DW5/4 (OSR), The letter dated
07.02.1986 is Ex.DW5/5 (OSR). The acknowledgment dated
24.04.1985 is Ex.DW5/6 (OSR). The letter dated 07.02.1986 is
Ex.DW5/7 (OSR). The original B form dated 01.04.1963 is
Ex.DW5/8 (OSR) (2 pages back to back). The original ka – kha
form dated 01.04.1966 is Ex.DW5/9 (OSR) (2 pages back to
back).
He has also brought the letter issued by the Assistant Assessor
and Collector, Central Zone dated 12.09.2018 which is
Ex.DW5/10, as per the record vide letter dated 24.08.1955 the
property was recorded in the name of Sh Vesheshwar Nath
Dewan and Dewan Vishwanath”.
14. DW6, Ms Renu Dhir is the neighbour of the defendant
examined by way of affidavit Ex.DW6/A.
15. DW7, Shri Raghubeer, LDC, Ministry of Home affairs who
brought the record titled as “handing over of Lahore shed.”
CS NO.7664/16 & CS No. 7665/16 Page No. 18 /94
same was Ex.DW7/A (inadvertently mentioned as Ex.PW7/A)
16. DW8 ,Thingnam Sanjiv, Archivist, National Archives of India
brought a letter/certificate issued by Shri T Hussain, deputy
director of archives, same is Ex.DW8/A.
17. DW9, Shri K K Sikka who is the relative of the deceased
defendant examined by way of affidavit Ex.DW9/A.
Arguments
18. The main suit is the oldest matter of this court and the
connected case was also filed in the year 2003. I have heard the
arguments made by both the sides at length. The plaintiff has
argued that since lease deed dated 30/12/1985 is in his favour
which subsequently resulted in conveyance deed dated
26.02.2007, the plaintiff is the owner of the suit property and is
entitled to the relief of possession. The plaintiff has also argued
that in a partition suit filed by the defendant herein against the
plaintiff herein, the court had relied upon the said lease deed
and rejected the plaint under Order VII Rule 11 of CPC. Per
contra, the defendant has argued that the plaintiff is not the sole
owner of the suit property and rather, the defendant is a co-
owner in the suit property. The defendant has placed reliance
upon letter dated 24/08/1955, which resulted in family
settlement dated 18/09/1957 and has argued that the said family
CS NO.7664/16 & CS No. 7665/16 Page No. 19 /94
settlement is binding on both the parties. The defendant has
further argued that the construction money for construction of
the suit property was given by the father of the parties and also
by the defendant. The defendant has further argued that there
are house tax receipts which clearly show the name of the
defendant as owner of the suit property. The defendant has also
argued that the lease deed dated 30/12/1985 was obtained by
the deceased plaintiff fraudulently and has relied upon various
correspondence letters between that the defendant and various
government departments. The defendant has placed reliance
upon huge number of judgments which are contained in 2 files
and the same are discussed hereinbelow serial -wise, as per
compilation of the defendant:
(1.) Tara Sikand Atwal vs. Viraj Sikand and Ors. (10.04.2019 –
DELHC)
This case pertains to cancellation of relinquishment deed and
consequential relief of partition. The defendant stated that family
settlement has been given a special status and the same is not be
disturbed with a view to preserve peace and harmony of the
family. The facts and relief claimed is different from the present
case at hand and hence no reliance can be placed.
(2.) Thulasidhara and Ors. vs. Narayanappa and Ors. (01.05.2019
– SC)
This was a suit for declaration and permanent injunction. The
CS NO.7664/16 & CS No. 7665/16 Page No. 20 /94
defendant stated that keeping in view of the facts ad
circumstances of the case the family settlement was not required
to be registered. The main document in issue only pertained to
list of properties partitioned and court held that the same is not
required to be registered. Hence no reliance can be placed.
(3.) Chander Kanta Singhal and Ors. vs. Kapadia Exports and
Ors. (11.10.1996 – DELHC)
This was a suit for possession and mesne profits. The defendant
stated that validity of notice cannot be challenged once it is
proven that the address on the said notice was correct and the
notice was sent by adopting a proper method. The whole matter
revolves around validity of termination notice and hence the
same is of no use in the facts of present case.
(4.) Ramchandra Sakharam Mahajan vs. Damodar Trimbak
Tanksale (D) and Ors. (09.07.2007 – SC)
This was a suit for declaration of joint title and mandatory and
permanent injunction. The defendant stated that burden to
establish title is always on the party asserting it and cannot rely
on the weakness of defence. In this case the court ultimately
remanded the suit back to trial court for fresh trial, hence the
same is of no use in present case.
(5.) Devi Sahai and Ors. vs. Ram Phal Bansal and Ors. Delhi
CS NO.7664/16 & CS No. 7665/16 Page No. 21 /94
High Court 1996 (ORDER)
The court decided upon an application under Order XIV Rule 5
CPC. The defendant stated that once the signatures are admitted
the party so admitting the signatures cannot then deny the
document to be false or fabricated. The facts upon which court
decided is different from the facts in present case and hence
reliance cannot be placed.
(6.) Jagdish Chandra Ghose and Ors. vs. Basant Kumar Bose and
Ors. (06.04.1963 – PATNAHC)
The defendant relied on the point of valuation/ ejectment of
licensee. The principal question which arose for consideration in
this case was with regard to basis of valuation of a suit for
ejectment of a licensee when he continued to live in licensed
premises in spite of termination of his licence. Hence it is of no
avail in the factual matrix of present case.
(7.) Sisir Kumar Dutta and Ors. vs. Susil Kumar Dutta
(29.06.1960 – CALHC)
The defendant relied on the point of valuation/ ejectment of
licensee. This suit is again related to valuation of suit against
licensee. Hence no reliance can be placed.
(8.) Nawal Kishore vs. State (02.11.1982 – DELHC)
The defendant stated that burden of proof of fraud is always on
CS NO.7664/16 & CS No. 7665/16 Page No. 22 /94
party asserting it. A vague plea of undue influence or fraud
would be of no avail. This is a criminal matter which talked
about burden of proof on accused. Hence no bearing in the
present case.
(9.) Rite Approach Group Ltd. vs. Rosoboronexport (16.03.2007
– DELHC)
This was an appeal against order of Section 9 of Arbitration and
Conciliation Act. The defendant stated that claim of property
purchased entirely by one person or jointly by a hindu family is
to be answered by the person asserting such a claim and not be
power of attorney holder. Hence no bearing in the present case.
(10.) Janki Vashdeo Bhojwani and Ors. vs. Indusind Bank Ltd.
and Ors. (06.12.2004 – SC)
This matter pertains to decision by DRT. The facts of the
decision differ from the facts in the present case and hence of no
avail in the present matter. The defendant stated that acts done by
a power of attorney holder would not include deposing instead of
the principal and also on aspect of no source of income for
making contribution in purchasing of property. This matter
pertains to attachment of property in execution of wife of a
person against whom decree in recovery suit was passed.
(11.) Janki Vashdeo is repeated here
CS NO.7664/16 & CS No. 7665/16 Page No. 23 /94
(12.) A.C. Narayanan and Ors. vs. State of Maharashtra and
Ors. (13.09.2013 – SC)
This matter pertains to power of attorney holder and a complaint
under Section 138 NI Act.
Para 18 of judgment- “The power-of-attorney holder does not
have personal knowledge of the matter of the Appellants and
therefore he can neither depose on his personal knowledge nor
can he be cross-examined on those facts which are to the
personal knowledge of the principal.”
Even this judgement is not of much avail as this matter is
regarding a criminal liability whereas the present suit is a simple
civil suit for possession.
It is pertinent to mention that the ratio of the judgements at serial
No. 10, 11 and 12 relied upon by the defendant is misconceived.
The above said judgement is nowhere say that a power-of-
attorney holder cannot depose on behalf of his principal. It is
settled or that a power-of-attorney holder can certainly depose
provided he has personal knowledge of the facts and
circumstances of the case. These judgements have been placed
on record in respect of PW3, who is the son-in-law of the
deceased plaintiff who got married with the daughter of the
deceased plaintiff 1980 and had personal knowledge of the case
thereafter. Therefore he can certainly depose a facts which are
within his knowledge. However, he cannot depose on the facts
CS NO.7664/16 & CS No. 7665/16 Page No. 24 /94
which are not within his knowledge.
(13.) S. Kesari Hanuman Goud vs. Anjum Jehan and Ors.
(10.04.2013 – SC)
I have discussed the applicability of this judgement while
discussing issue no. 1 below.
(14.) Hari Narain and Ors. vs. Bela Devi (16.07.1993 – DELHC)
The defendant stated upon deemed admission of documents
when no cross examination was done by the plaintiff. This was a
petition under section 14(1)(b) of DRC Act and the same is of no
use in the present case.
(15.) Vinod Kumar Dhall vs Dharampal Dhall 26.04.2018
Supreme court
This case supports the case of plaintiff only and is discussed
below with the findings on issue number 1.
(16.) Pappi vs. Ramesh Kumar (28.02.2017 – DELHC) :
MANU/DE/0575/2017
The defendant stated that a person holding property in trust on
behalf of his brother or other family members cannot be granted
decree of possession by terming the possession of defendant as
that of licensee. This matter was a suit for possession filed by a
brother against another brother. In this the Plaintiff claimedCS NO.7664/16 & CS No. 7665/16 Page No. 25 /94
ownership on basis of unregistered, undated and photocopies of
various documents like GPA, Will etc. The court ultimately held
that none of the brother is having any title in the suit property but
mere possessory rights. Hence the said judgment is not relevant
as the facts of present matter are different from the said decision.
The present case revolves around registered documents and
hence this judgment is of no avail.
(17.) Bhagwan Dayal vs. Reoti Devi (04.09.1961 – SC) :
MANU/SC/0374/1961
The defendant stated that the general rule is every Hindu family
is presumed to be a joint family unless the contrary is proven.
Any other inference can only be drawn by direct evidence or by
course of conduct. This was a suit for declaration and the matter
largely touched upon the issue of res judicata and hence the same
is of no use in the factual matrix of the case at hand.
(18.) Surendra Kumar vs. Phoolchand (Dead) through and Ors.
(02.02.1996 – SC)
The defendant stated that on point of whether property was joint
family or not, It was found that consideration money for
purchasing the property had been paid by the father of parties out
of joint family funds and as such it was a joint family property.
In this judgement, the property in question is a joint family
property for which partition was sought. However, thisCS NO.7664/16 & CS No. 7665/16 Page No. 26 /94
judgement cannot be used in the present case as the plaintiff’s
categorical case is that he is the owner of property wide lease
deed.
(19.) Appasaheb Peerappa Chandgade vs. Devendra Peerappa
Chandgade and Ors. (19.10.2006 – SC)
The defendant stated that it is not open to any member to
convert joint property into personal property by unilateral act.
This was a suit for partition and the main dispute was whether
the suit property was a joint family property or self-acquired
property. The facts of this case are different from the facts of
the present case and hence no reliance can be placed.
(20.) Vaneeta Khanna and Ors. vs. Rajiv Gupta and Ors.
(01.10.2015 – DELHC)
The defendant stated that unilateral acts by one individual
cannot take away vested rights of another family member. All
such documents executed by unilateral acts would be declared
void and not binding upon the parties and also on point that
rejection of suit under order VII Rule 11 CPC would not operate
as res judicata.
This is the suit filed for possession, declaration, mesne
profits/damages, perpetual injunction and mandatory injunction.
In this suit declaration of ownership is sought by the plaintiff as
a categorical relief. However the present suit is filed by theCS NO.7664/16 & CS No. 7665/16 Page No. 27 /94
plaintiff for possession and through the said suit the defendant
is trying to seek relief of declaration of ownership in his favour
without any prayer or counterclaim to that effect. Therefore, this
judgement also is not of any help to the defendant.
(21.) Virender vs. The State of NCT of Delhi (29.09.2009 –
DELHC)
The defendant stated upon the competency of a witness as a
basic requirement of understanding an obligation to speak the
truth and to give accurate impression and possession of mental
capacity. This is a criminal matter pertaining to offence of rape
and hence not relevant in the present case.
(22.) Bonder and Ors. vs. Hem Singh (Dead) by Lrs. and Ors.
(15.05.2009 – SC)
The defendant stated that in case of entrustment by one brother
to another to handle the property, the plea of latter being a
licensee or the former being a sole owner cannot arise. This
case pertains to entrustment of property by plaintiff to his
defendant brother and issue also pertains to claim of adverse
possession. Hence no benefit can be taken for the present case.
(23.) K.C. Saha vs. R.K. Banerjee (27.03.1981 – PATNAHC)
The defendant relied on the point of valuation/ ejectment of
licensee. The case pertains to valuation of the suit of eviction
against tenant. Hence no merit can be derived for the present
CS NO.7664/16 & CS No. 7665/16 Page No. 28 /94
case.
(24.) Traders Syndicate vs. Union of India (UOI) (21.07.1982 –
CALHC)
The defendant stated that in absence of cross examination done
with respect to a fact or document put to witness would
tantamount to the other side admitting the execution of the said
document. This is a suit for recovery of compensation for non
delivery by the defendant of the consignment. Hence the suit is
of no avail in the present matter.
(25.) Devi Sahai judgment at no.5 is repeated here
(26.) Qaiser Jahan Begum and Ors. vs. Ramzan Karim and Sons
(01.04.1998 – DELHC)
The defendant stated that the unrebutted testimony which is
given by a witness would tantamount to a deemed admission of
the said fact, pleading or document. This is again a suit for
recovery of money from the defendant and hence does not
pertain to the present suit.
(27.) Sakhahari Parwatrao Karahale and another Vs.
Bhimashankar Parwatrao Karalhe 08.08.2000 Supreme Court
Order
The defendant stated that possession by one family member
without partition would be considered as possession of all. It
CS NO.7664/16 & CS No. 7665/16 Page No. 29 /94
was a suit for permanent injunction against brother and matter
pertained to the HUF property. Even here the facts of the case
do not align with facts of the present case and hence not
relevant in the present case.
(28.) Neel Dayal and Ors. vs. Someshwar Dayal and Ors.
(22.03.2017 – DELHC)
The defendant stated that any of the clause of memorandum of
family settlement agreement does not show any intent of
defendant to abandon his right to property or sorting the share
of plaintiff as the sole owner. The case relates to suit for
partition. The facts of this case do not align with the facts of
present case and hence no reliance can be placed.
(29.) Marcel Martins vs. M. Printer and Ors. (27.04.2012 – SC)
The defendant stated that the term producer means a person
who holds a thing in trust for another, such person is duty
bound to act for the benefit of others on matters within the
scope of relationship. The matter deals with aspect of benami
transactions. Further, even in this suit the relief of declaration
with respect to co-ownership of the plaintiffs was sought. In the
present case, there is no prayer or counterclaim for seeking the
prayer of declaration of ownership and hence, this judgement
cannot be made applicable to the present facts.
CS NO.7664/16 & CS No. 7665/16 Page No. 30 /94
(30.) Kamala and Ors. vs. K.T. Eshwara Sa and Ors.
(29.04.2008 – SC)
The defendant stated that any finding given upon merits of suit
rejected under Order VII Rule 11 CPC would not constitute the
subsequent suit being barred by res judicata. This is again a suit
for partition wherein an application under order VII Rule 11(d)
CPC was decided by the court. No material finding is useful in
the present case.
(31.) Satish Kumar Batra vs. Harish Kumar Batra and Ors.
(09.02.2018 – DELHC)
This is a suit for declaration and permanent injunction. The
defendant stated that even if one family member does not abide
by a family settlement, the harmony of the said family is
disturbed, family settlements should be enforced without going
into the technicalities. The main issues revolved around an
unregistered family settlement. In the present case the family
settlement is a registered document, and hence, this judgment is
of no material use.
(32.) Mary Assumption Trinidade and Ors. Vs. Vincent Manuel
Trinidade and Ors.(14.08.1975 – DELHC)
The defendant stated that sanctity of the deed is to be kept intact
when it makes provisions with regard to matter of share of
parties. The matter clearly dealt with the provisions of The
CS NO.7664/16 & CS No. 7665/16 Page No. 31 /94
Indian Succession Act and hence of no avail to the facts of the
present case.
(33.) State vs. Mohd. Afzal and Ors. (29.10.2003 – DELHC)
The defendant stated that correctness of falsity of a document
cannot be looked into or raised at the time of tendering of such
a document before the court. This is the parliament attack case.
I fail to understand as to how the case is useful to the facts and
circumstances of the present case at hand.
(34.) Hari narain Vs Bela devi judgment at point no. 14 is
repeated
(35.) Kondiram Bhiku Kirdat vs. Krishna Bhiku Kirdat
(Deceased by L.Rs.) (04.10.1994 – SC)
This is again a suit for partition and the property in dispute is a
joint family property. The defendant stated that brothers
contributing to the family property purchased by their father
and who are looking after the property, such property would be
a joint family property. The facts of the present case do not
align with the facts therein.
(36.) Judgment at point no. 27 is repeated here.
(37.) Judgment at point no. 18 is repeated here.
(38.) Judgment at point no. 16 is repeated here.
CS NO.7664/16 & CS No. 7665/16 Page No. 32 /94
(39.) Anil Kumar Mitra and Ors. vs. Ganendar Nath Mitra and
Ors. (28.11.1996 – SC)
This matter again pertains to the suit of partition. No finding is
relevant for the present case at hand.
(40.) Hari Singh vs. Madan Lal and Ors. (24.01.2001 –
DELHC)
The defendant stated that pleadings and evidence are required
to prove the sole ownership along with means to purchase the
property and raise construction. This is a suit for possession and
recovery of damages. Surprisingly this decision supports the
claim of plaintiff in the present case and goes totally against the
defence raised by the defendant. This judgement is discussed
below along with findings on issue number 1.
(41.) Subraya M.N. vs. Vittala M.N. and Ors. (05.07.2016 –
SC) This is again suit for partition. The defendant stated that the
parties head acted upon the terms of written family settlement
and the same was supported by the subsequent conduct of the
parties. The facts of this case do not match with the facts of
present case at hand. Hence no reliance can be placed.
(42.) Judgment at point no.1 is repeated.
CS NO.7664/16 & CS No. 7665/16 Page No. 33 /94
(43.) Gopal Kishan vs. Ram Saroop (22.09.2017 – DELHC)
The defendant stated that plea of forgery of family settlement is
not sustainable when the same is viewed as being honored and
non-registration of same is not fatal.
Discussed in details with findings on issue No. 5 below.
(44.) Rishi Pal Singh vs. Harinder Pal Singh and Ors.
(02.05.2016 – DELHC)
This is a suit for partition. The defendant stated that the family
arrangement which is delineating specific portions to specific
parties is not required to be registered. The matter revolves
around a compromise agreement and no relevant finding can be
traced out of it.
(45.) Vimla Monga and Ors. vs. Ramlubhai and Ors.
(31.03.2014 – DELHC)
The defendant stated that family arrangement has to be given a
proper effect so as to deny a party to challenge it.
This judgement is also filed on the sanctity of family
settlement. It is discussed below along with findings on issue
No. 5.
(46.) Manjit Singh and Ors. vs. Analjit Singh and Ors.
(01.10.2012 – DELHC)
The issue in this case pertains to the payment of stamp duty on
the memorandum of family settlement. The defendant stated
CS NO.7664/16 & CS No. 7665/16 Page No. 34 /94
that an oral family settlement reduced in writing as
memorandum of settlement does not in itself create or
extinguish any rights but the same only records pre-existing
rights of the parties and the same requires no registration. The
said issue is not an issue in the present case and this judgment is
of no use.
(47.) Suresh Srivastava and Ors. vs. Subodh Srivastava and Ors.
(31.08.2012 – DELHC) This is discussed along with findings
on issue No. 5.
(48.) Judgment at point no. 13 is repeated.
(49.) Judgment at point no. 10 is repeated.
(50.) Judgment at point no. 12 is repeated.
(51.) Judgment at point no. 39 is repeated.
(52.) Judgment at point no. 22 is repeated.
(53.) Judgment at point no. 27 is repeated.
(54.) Judgment at point no. 35 is repeated.
(55.) Judgment not on record .
19. I shall now give my issue wise findings on the above mentioned
issues in both the matters.
Issue No.4:- Whether the suit is filed without any cause of
action? OPD (Also issue no. 3 of the connected case)
20. The plaintiff has filed suit for possession and mesne profits. It is
CS NO.7664/16 & CS No. 7665/16 Page No. 35 /94
the case of the plaintiff that he is the owner of the suit property
and the defendant is in possession of the ground floor of the suit
property in respect of which the plaintiff has filed the present
suit for possession.
21. It is argued by the defendant that since there exists a family
settlement dated 18/09/1957, the parties to the suit are bound by
the same. It is further argued that in disputes regarding
possession among family members, the burden of proof lies
heavily on the party claiming possession. Per Contra, the
plaintiff has filed the present suit for possession on the basis of
registered lease deed which resulted in a subsequent
conveyance deed in favour of his daughter, being the only LR
of the plaintiff after his demise. It cannot be said that the
present suit is filed without any cause of action. Thus, at the
outset, before discussing the other issues, it is significant to
mention that I am of the opinion that the present suit is filed
with a cause of action. The onus to prove whether the present
suit is filed without cause of action was upon the defendant who
has not been able to prove that how the present suit is filed
without cause of action. Hence issue No. 4 (issue no. 3 of the
connected case) is decided in favour of the plaintiff and against
the defendant.
22. Issue No. 3:- Whether the defendant is co-owner of the property
CS NO.7664/16 & CS No. 7665/16 Page No. 36 /94
in dispute in view of letter issued by Ministry of Urban,
Government of India dated 24/08/1955? OPD (Also issue no. 2
of the connected case)
The defendant has claimed to be co-owner of the suit property on
the basis of letter issued by Ministry of Urban, Government of
India dated 24/08/1955. On the other hand, the plaintiff has
stated that the said letter is not in the form of any joint allotment
as claimed by the defendant. The said letter is discussed in detail
herein below:
Letter dated 24.08.1955 EX. DW4/34 and also Ex.DW1/2
23. This letter is of utmost significance in the present matter. The
contents of the letter are reproduced herein below :
“I am directed to refer to the correspondence
resting with your office letter No: F.50(7)/53-
R&R(A) dated 22.02.54 on the subject noted
above and to say that this Ministry has no
objection to the joint allotment of the said plot
in the name of the original allottee, Shri
Vasheshar Nath Dewan and his brother Dewan
Vishwa Nath, as desired by the allottee in his
letter dated Nil a copy of which was sent to
you vide this Ministry’s letter dated 20.6.53.
Necessary documents have already been
obtained by this Ministry from both the
brothers. The Housing & Rent Officer may,
therefore, be instructed to amend his record
accordingly”.
24. The counsel for the plaintiff has argued that the said letter dated
24/08/1955 is not in the form of joint allotment, as claimed by
the defendant. The counsel for plaintiff has submitted that the
CS NO.7664/16 & CS No. 7665/16 Page No. 37 /94
said letter does not confer any co-ownership in favour of the
defendant. Per contra the counsel for defendant has argued that
the letter dated 24/08/1955 is a joint allotment letter. The
counsel for defendant has placed reliance upon letter written by
the deceased plaintiff requesting for joint allotment dated
20/22.06.1953 which is exhibit Ex.DW4/35. The defendant has
further argued that the intention of the parties is reflected in the
letter dated 20/22/06/1953 and further in the family settlement
dated 18/09/1957. It is the case of the defendant that against the
said letter and the agreement, the lease deed dated 30/12/1985
was fraudulently obtained by the deceased plaintiff concealing
all the previous documents. The defendant has argued that the
lease deed dated 30/12/1985 could not be executed as the letter
dated 24/08/1955 was in existence. The defendant has argued
that during the cross examination of DW4 Shri B Pal, when the
counsel for plaintiff asked whether there was any letter or
application or document with sought cancellation of letter dated
24/08/1955, the witness replied in the negative stating that no
such document exists which shows the cancellation of the letter
dated 24/08/1955.
25. The defendant has claimed to have acquired ownership in the
suit property in the capacity of co-owner by virtue of this letter
dated 24.08.1955. It is pertinent to mention here that vide the
said letter, it was intimated that the concerned Ministry had no
CS NO.7664/16 & CS No. 7665/16 Page No. 38 /94
objection to the joint allotment of the suit property in the name
of the plaintiff and the defendant. Further, vide this letter, the
Housing and Rent officer was instructed to amend his record.
26. Plain reading of the letter dated 24.08.1955 and objective
interpretation of the same suggests that there was only an
instruction for amending the record of the concerned
department. This letter nowhere declares joint ownership or
allotment in the name of the defendant. Certain directions have
been given to the concerned department, which were never
acted upon by the concerned department, for the reasons best
known to the concerned department, which ultimately resulted
in the execution of Lease Deed dated 30.12.1985 in favour of
the plaintiff. The defendant has wrongly interpreted this letter
and erroneously believed that the said letter confers a title upon
him.
27. Reliance is also placed on the letter dated 17.10.1955 which is
Ex.DW-4/33 and also Ex.PW3/DX10 from Under Secretary,
Government of India to the Plaintiff. The contents of the letter
are reproduced hereinunder:
“He may clear off arrears of ground rent
amounting to Rs. 235/81 upto 31.3.56, so that
this office records may be amended and the
allotment may be made in his and his brother’sCS NO.7664/16 & CS No. 7665/16 Page No. 39 /94
name.”
28. Further reliance is placed on letter to Smt Mohsina Kidwai
from the defendant dated 15.09.1987 which is Ex.DW4/4.
Perusal of the said letter suggests that the defendant was
requesting for formal lease deed in respect of the suit property
on the basis of letter dated 24.08.55, the registration of which
had not been done even on the date of writing the letter.
29. The above letters have been placed on record by witness
produced by the Defendant himself. Even the said letters clearly
demonstrate that the letter dated 24.8.1955 had not been acted
upon by the Department. Thus, the Defendant has miserably
erred by wrongly interpreting the letter dated 24.08.1955 as
entitling the defendant to be a co owner in the suit property.
30. The entire case of the defendant is based on this document
dated 24/08/1955. Vide the said letter, it was stated that the
Ministry had no objection to the joint allotment of the suit
property in the joint names of the deceased plaintiff and the
deceased defendant and accordingly the Housing and Rent
Officer was instructed to amend his record accordingly. The
said letter was only in the form of an instruction which nowhere
declared joint ownership in the name of the defendant. The said
letter was never acted upon by the Department which is very
CS NO.7664/16 & CS No. 7665/16 Page No. 40 /94
clear from the correspondence letters written by the defendant
to various departments which are discussed below.
31. To add further, DW4 from Consultant Land and Development
Office and DW5 from the office of Assessor and Collector
House Tax Department have both deposed that the suit property
was in the name of the deceased plaintiff which eventually was
mutated in the name of Smt Nisha Sawhney. It is also a matter
of record that in respect of the suit property conveyance deed
has been executed in the name of Smt Nisha Sawhney on
26/02/2007. The onus to prove ownership in the name of the
defendant was upon the defendant. The defendant has produced
on record various letters written to various departments which
are discussed at length below whereby he has asked the
concerned department to cancel the lease deed dated
30/12/1985 in the name of the deceased plaintiff and has prayed
for joint allotment of the suit property in the names of parties to
the suit. However it is very clear that even as on today, as per
the records, the suit property is mutated in the name of Smt
Nisha Sawhney by virtue of a conveyance deed duly executed.
The execution of the said lease deed has not been challenged
before any court of law. Merely writing correspondence letters
do not confer any title upon the defendant.
32. Per contra, the plaintiff has placed on record lease deed dated
CS NO.7664/16 & CS No. 7665/16 Page No. 41 /94
30/12/1985 in his favour and further conveyance deed dated
25/02/2007 in the name of the daughter of the deceased
plaintiff, who is also plaintiff No. 2 in the present matter after
the demise of the plaintiff. Thus, the defendant has not been
able to discharge the burden of proving his co-ownership in the
suit property and hence issue No. 3(Also issue no. 2 of
connected case) is decided against the defendant and in favour
of the plaintiff.
33. Issue No.1:- Whether the plaintiff is owner of the property in
dispute? OPP (Also,Issue no. 1 of the connected case)
AND
Issue No.2:- Whether the plaintiff is entitled to a decree of
possession as prayed? OPP
34. The burden to prove issue no.1 is upon the plaintiff. The
counsel for the defendant has vehemently argued on this aspect
pointing out to various aspects which, as per him, do not confer
ownership in favour of the plaintiff. The issues raised by the
counsel for defendant have been dealt in detail herein below
under various heads.
35. The plaintiff has placed reliance upon the lease deed dated
30/12/1985 which is Ex.PW2/1.
Further, The plaintiff has examined PW1 Shri Prem Singh,
Inspector, House tax Department. The witness has deposed that
CS NO.7664/16 & CS No. 7665/16 Page No. 42 /94
the property is assessed to House tax as per their record in the
name of the deceased plaintiff. The house taxes have been paid
by the deceased plaintiff as per their record. The mutation of the
property in the name of the deceased plaintiff was recorded on
04/12/1987. The plaintiff has examined another witness PW-2,
Shri Dinesh Sharma, clerk, Khatri Urban cooperative Bank who
had brought the Original Lease Deed which is EX.PW2/1 and
has deposed that the original lease deed of the suit property is in
possession of the bank as loan was taken by M/s Sama
international from the bank and the deceased plaintiff, in the
capacity of the guarantor, mortgaged the suit property to the
bank to secure the loan granted to Sama international by
depositing all the title deeds. The defendant has examined DW4
Shri B Pal , Consultant Land and Development Office, who has
deposed in his cross-examination that initially the suit property
stood in the name of the deceased plaintiff and at the time of
cross-examination the suit property stood in the name of Smt
Nisha Sawhney. DW5, Shri Narendra kumar, AZI from the office
of Assessor and Collector House tax Department has deposed in
his cross-examination that on the date of the cross-examination,
the suit property stood mutated in the name of Smt Nisha
Sawhney. Prior to that, the suit property was in the name of the
deceased plaintiff.
36. The plaintiff has argued that on the basis of the lease deed dated
CS NO.7664/16 & CS No. 7665/16 Page No. 43 /94
30/12/1985 and further conveyance deed dated 26.02.2007 in
favour of Smt Nisha Sawhney(upon the death of the original
plaintiff and being his legal heir), the plaintiff is the owner of
the suit property.
37. Thus, it stands proved that at present, on the basis of the lease
deed dated 30/12/1985 and further the conveyance deed dated
25/02/2007, the suit property stands in the name of Smt Nisha
Sawhney.
38. Other arguments for proving that the plaintiff is not the owner
of the suit property have been led by the defendant on the
grounds that the construction money with respect to the suit
property was paid by the father of the deceased parties. The
defendant has objected to the deposition by PW3, Sh Rakesh
Sawhney, on the ground that he was attorney of the deceased
plaintiff through legal representatives. During the cross-
examination, PW3 could not explain from whom the deceased
plaintiff had taken loan for construction of the suit property.
Since the questions pertaining to construction of the suit
property could only be answered by the deceased plaintiff or his
legal representatives, the counsel for defendant has objected to
the deposition of PW3 for not having personal knowledge. My
findings on the construction money are here in below.
Construction Money
CS NO.7664/16 & CS No. 7665/16 Page No. 44 /94
The plaintiff has stated in his plaint that the plaintiff started
construction of the plot (pertaining to the suit property) after
taking possession and constructed a 2 and ½ storey on the said
plot. It is stated that the construction was totally financed by the
plaintiff, out of his own funds and savings and the construction
of the suit property was completed during the period 1951-55.
The counsel for the defendant has denied this and has stated that
the construction was raised from the funds of father of the
parties. The defendant has placed reliance on letter dated
01.11.1957 which is Ex.DW4/31 and Ex.PW3/DX4, to the
Housing and Rent Officer requesting adjustment of the amounts
on ground rent to be recovered against the claimed compensation
due to his father vide compensation application no. 367- Ambala
Cantt. To this, the father of the parties had written a letter dated
01.10.1960 Ex.DW1/11 to the Assistant Accounts Officer
thereby requesting that the adjustment of the amount of Rs.
508.06P may kindly be made in respect of ground rent of the plot
at the suit property.
39. The defendant had also placed reliance on agreement dt
18.09.1957 Ex.DW2/1 (also Ex.DW1/3) wherein the father of
the parties had written that both the parties contributed towards
the cost of the construction.
40. PW-3 in his evidence by way of affidavit has stated that the
CS NO.7664/16 & CS No. 7665/16 Page No. 45 /94
plaintiff started construction on the said plot out of his funds. In
his cross examination, PW-3 has stated that he was not present
at the time of purchase of the suit property and also at the time
of its construction. He has also stated that he is not aware of the
fact whether the plaintiff (deceased) was not working anywhere
in 1947 or that the defendant was in employment at that time. It
is pertinent to mention that PW-3 is the son-in-law of the
deceased plaintiff who had got married to the daughter of the
deceased plaintiff on 04/12/1980. PW-3 had appeared as an
attorney on behalf of Nisha Sawhney. The counsel for the
plaintiff has argued that since PW-3 had no personal knowledge
of construction of the suit property, he is not entitled to depose
on the same.
41. During his cross examination, PW-3 had further stated that he
has no knowledge where the deceased plaintiff kept the money
at the relevant time for raising the construction. PW-3 was
shown the documents which are Ex.PW3/DX14 (colly)
pertaining to diary written by deceased Deena Nath containing
details of accounts related to construction. PW-3 has deposed
that he does not know whether the diary shown to him was
written by deceased father of the parties or not.
42. The counsel for the defendant has argued that PW 3 has no right
to depose being power of attorney holder on behalf of the LRS
CS NO.7664/16 & CS No. 7665/16 Page No. 46 /94
of deceased plaintiff. The defendant has placed reliance upon S.
Kesari Hanuman Goud vs. Anjum Jehan and Ors. (10.04.2013 –
SC) in which it is held :
“It is a settled legal proposition that the power
of attorney holder cannot depose in place of
the principal. Provisions of Order III, Rules 1
and 2 Code of Civil Procedure empower the
holder of the power of attorney to “act” on
behalf of the principal. The word “acts”
employed therein is confined only to “acts”
done by the power-of-attorney holder, in
exercise of the power granted to him by virtue
of the instrument. The term “acts”, would not
include deposing in place and instead of the
principal. In other words, if the power-of-
attorney holder has preferred any “acts” in
pursuance of the power of attorney, he may
depose for the principal in respect of such
acts, but he cannot depose for the principal for
acts done by the principal, and not by him.
Similarly, he cannot depose for the principal
in respect of a matter, as regards which, only
the principal can have personal knowledge
and in respect of which, the principal is
entitled to be cross-examined.”
CS NO.7664/16 & CS No. 7665/16 Page No. 47 /94
43. Per contra, it is argued by the counsel for the plaintiff that the
said judgement is not applicable in the present facts as it states
that power of attorney holder cannot depose in place of the
principal; however, the present case is not so as the plaintiff had
already expired and thereafter Shri Rakesh Sawhney deposed as
an attorney on behalf of the LRS of deceased plaintiff. I agree
with the submission made by the plaintiff. Plaintiff had already
expired when the matter reached at the stage of evidence,
personal knowledge of facts before his marriage on 04.12.1980
can not be expected, however, being son-in-law of the deceased
plaintiff, it can be presumed that he has knowledge of the facts
pertaining to the family matters thereafter and can depose with
respect to those.
44. DW-1, Sh Bhushan Dewan in his evidence by way of affidavit
has stated that his grandfather used to write all the expenses in
the diary maintained by him during his lifetime. The passbook
of Imperial Bank of India is Ex.PW3/DX15(colly). The counsel
for the defendant has argued that since the PW-3 has not been
able to prove how construction of the suit property was done,
the version of the defendant supported through documents is
liable to be believed.
45. The plaintiff has referred to contradictions in the stands taken
CS NO.7664/16 & CS No. 7665/16 Page No. 48 /94
by the defendant on various occasions. He has pointed out to
letter dated 25.07.1985 which is Ex.DW1/30, where it is
mentioned that both the parties have raised construction from
their own funds. He has also pointed out to preliminary
objections raised by the defendant in his amended Written
Statement wherein in para no.4 of preliminary objections, the
defendant has stated that construction was raised from the funds
of father of the parties and later on in the same paragraph, it is
mentioned that the construction was raised from the funds of
the parents of the deceased parties.
46. The counsel for the plaintiff has objected to the exhibition of
the documents related to passbook and bills related entries
related to the father of the parties which have been exhibited by
DW1 which relate to the time prior to the birth of DW1. Further
the counsel for the plaintiff has argued that no document has
been placed on record which shows that construction money
was paid by the defendant in his personal capacity.
47. The plaintiff has also rightly pointed out to contradictions in
various letters and legal notice sent on behalf of defendant
wherein at some places, it is mentioned that the construction
was carried on by the father of the parties, while at some places,
it is mentioned that construction was carried on by the parents
of the parties and at some places, it is mentioned that the
CS NO.7664/16 & CS No. 7665/16 Page No. 49 /94
construction was carried on by the defendant and his father.
Thus the counsel for the plaintiff has argued that on the basis of
the own admissions of the defendant, at least the plaintiff has
contributed to 50% of the construction money.
48. Reliance is placed on many documents which have been
exhibited; however for support, I am highlighting a few
documents: Ex.DW1/25 and also Ex.DW5/2 which is letter
from defendant to MCD dated 18/06/1985 wherein it is
mentioned that “the construction thereon was erected by both of
us as equal partners from our own resources”. Further reliance
is placed on Ex.DW1/30 which is letter dated 25.07.1985 which
reads as “the construction on the plot was erected by both the
partners from their own resources”. Reliance is also placed on
Ex.DW4/1 that is notice dated 21/12/1989 from Shri BB Gupta
which reads as “that the property on the said plot had been
constructed by my client, his brother and their father”.
49. Even if it is admitted for the sake of arguments that the
defendant or their father have paid the construction money in
respect of suit property, still the defendant cannot claim
ownership over the suit property. It is held in various judgments
that merely because any of the party to the partition suit has
incurred substantial expenses towards the cost of the
construction, it will not, in any way, increase or decrease the
CS NO.7664/16 & CS No. 7665/16 Page No. 50 /94
share of the party. At best, these type of claims can be subject
matter of the money claim in the form of a separate suit or
counter claim. Reliance is placed on Rameshwar Dayal Gupta
Vs. Mange Ram Gupta. 2019 (176) DRJ 403 wherein it was
held :
“Be that as it may, even if the Defendant has
incurred the expenses as alleged, it does not in
any way effect Plaintiff’s share in the suit
property. These expenses can only be a subject
matter of a money claim, for which admittedly
the Defendant is pursuing its counter claim.”
Hence, the arguments that construction money was
contributed by the defendant also does not award ownership in
favour of the defendant.
Rent Agreements
50. The defendant has placed reliance on various Rent Agreements
which have been executed between the deceased plaintiff and
the deceased defendant on one part and a third party on the
other part in respect of the ground floor of the suit property.
The same are Ex.DW1/4, Ex.DW1/5, Ex.DW1/6, Ex.DW1/7,
Ex.DW1/8, Ex.DW1/9 and Ex.DW1/10. In the said Rent
Agreements, the deceased plaintiff and the deceased defendant
have been together shown as lessors. It is argued on behalf of
CS NO.7664/16 & CS No. 7665/16 Page No. 51 /94
the defendant that since the defendant was a co-owner of the
suit property, the defendant was shown as a landlord even in
these rent agreements. The said rent agreements are of the
period before the execution of Lease Deed dated 30.12.1985 in
favour of the deceased plaintiff. The defendant has erroneously
considered himself as the co-owner of the suit property on the
basis of letter dated 24.08.1955. It is a settled principle of law
that lesser/landlord and owner are two different juristic
concepts. Being a lessor/landlord, does not imply ownership in
law. Any one who is authorized to collect rent on behalf of the
owner can be a landlord and the landlord can necessarily be not
the owner of the property while the owner can act in dual
capacity, that is to say, as a landlord as well as the owner of the
property.
51. Thus, the defendant being shown as a landlord in the rent
agreements does not confer upon the defendant any ownership
rights in the suit property.
52. Reliance is placed upon the decision of Hon’ble Supreme Court
of India in Sheela and Ors. Vs. Firm Prahlad Rai Prem Prakash
decided on 04/03/2002, in which it is held:-
“The definition of ‘landlord’ and ‘tenant’ as
given in Clauses (b) and (i) of Section 2 of the
Act make it clear that under the Act theCS NO.7664/16 & CS No. 7665/16 Page No. 52 /94
concept of land lordship is different from that
of ownership. A person may be a ‘landlord’
though not an ‘owner’ of the premises. The
factor determinative of land lordship is the
factum of his receiving or his entitlement to
receive the rent of any accommodation. Such
receiving or right to receive the rent may be
on the own account of the landlord or on
account of or for the benefit of any other
person”
House Tax and Wealth Tax
53. The defendant has argued that since he was a co-owner in the
property, wealth tax and house tax in respect of the property has
been paid by him. He has placed on record Notice of Demand
under Section 30 of the Wealth Tax Act dated 31.02.1979,
issued in the name of the deceased defendant. He has also
placed on record form of acknowledgement of documents
received from the deceased defendant. He has also placed on
record receipts of payment of wealth tax for the year 1970-71 in
which the name of the deceased defendant is shown as that of
the assessee. In his correspondence vide letter dated 18.03.1981
with the Department of Wealth Tax, the deceased defendant has
stated that he is the co-owner in the suit property along with the
deceased plaintiff and therefore he is liable for payment of only
50% of the value of the house for the purposes of wealth tax.
CS NO.7664/16 & CS No. 7665/16 Page No. 53 /94
54. The defendant has also placed reliance on receipts pertaining to
house tax in the name of the deceased defendant which are Ex.
DW1/15, colly (dates cannot be seen with clarity).
55. Form B which is Ex.DW5/8 was issued in favour of deceased
father Sh. Vishwanath Dewan which states that he had let out
the ground floor of the property to one tenant namely Mr.
Oberoi and he himself was residing on the first floor of the suit
property. Copy of the said Form B and Ka- kh is Ex. DW-1/16.
The counsel for plaintiff has argued that these documents
having the name of the defendant as its owner and the house tax
receipts having the name of the defendant are of no
consequence as they are simply survey reports and receipts.
Further, the counsel for the plaintiff has placed reliance on
various correspondence letters between the defendant and the
authorities which show contradiction in the stands taken by the
defendant with respect to payment of house tax. Reliance is
placed on Ex.DW5/4 which is letter dated 10/04/1985 in which
the defendant has stated “I have been collecting 50% share of
the property tax from the other partner and making payment of
the tax to the MCD.” Per Contra, during the course of
arguments the counsel for the defendant had stated that entire
house tax was being paid by the defendant.
CS NO.7664/16 & CS No. 7665/16 Page No. 54 /94
56. During his cross-examination, PW-3, Sh. Rakesh Sawhney has
deposed that it is correct that the property stood in the name of
defendant in the revenue records during the period 1971-1985.
He voluntarily deposed that “We first objected and later on
stopped making payment of house tax through the defendant”.
PW-3 Sh. Rakesh Sawhney has deposed that it is correct that
defendant Vishawanth Dewan used to deposit the house tax in
respect of the suit property. He voluntarily stated that the
deceased defendant used to deposit the house tax on behalf of
the plaintiff. He has deposed that he has no document to prove
that the name of the deceased plaintiff appeared in the record of
MCD for the period 1960-1985.
57. The plaintiff has examined PW-1, Sh. Prem Singh, Inspector,
House Tax Department. He has deposed that the property is
assessed to house tax as per their record in the name of
Vasheswar Nath Dewan. The house tax is being paid by
Vasheshwar Nath Dewan and the mutation of the property in
the name of Vasheshwar Nath Dewan was recorded on
04.12.1987. In his cross-examination, he has deposed that
before doing mutation in the name of deceased plaintiff, notice
was sent to deceased defendant through registered AD but the
AD or the postal receipt was not on his file.
58. The defendant has examined DW-3, Sh. Devender Pratap
CS NO.7664/16 & CS No. 7665/16 Page No. 55 /94
Singh, from the Property Tax Department.
59. DW-5 is Sh. Narender Kumar, from the office of Assessor &
Collector, House Tax Department. He has deposed that as per
their record, vide letter dated 24.08.1955, the property was
recorded in the name of the plaintiff and the deceased
defendant. During his cross-examination, he has deposed that
on the date of cross-examination, suit property stood mutated in
the name of Ms. Nisha Sawhney w.e.f. 31.05.2010. The suit
property was earlier in the name of the deceased plaintiff.
60. It is no res intergra that the payment of house tax or the
mutation does not confer any rights, title or the interest in the
property. The counsel for the plaintiff has placed reliance upon
Mohinder Singh Verma v J.P.S. Verma 2015 1 CivCC 215
wherein it is held :
“as far as payment of house tax and electricity
and water charges are concerned, again
merely such payment does not confer or
divest title. The only claim on this account
could have been for recovery thereof.”
61. Owning a property and getting the name entered in revenue
record are two different and distinct things. Mutation entry does
not confer right or title to the property. Mutation entry neither
CS NO.7664/16 & CS No. 7665/16 Page No. 56 /94
creates nor extinguishes title or ownership. (SUMAN VERMA
VS. UNION OF INDIA, (2004) 12 SCC 58). Mutation entries
do not confer any title to the property. It is only an entry for
collection of the land revenue from the person in possession.
The title to the property should be on the basis of the title they
acquired to the land and not by mutation entries. (DURGA DAS
VS. COLLECTOR, (1996) 5 SCC 618). Mutation neither
confers any title in the property nor is a document of title. (S M
T. KAMLESH ARORA VS. MUNICIPAL CORPORATION
OF DELHI 92 (2001) DLT 246 & J AGDISH CHANDER V S .
L T. GOVERNOR AND ORS (2009) 112 DRJ 229).
62. In Ramesh Chander Gupta Vs. Kanta Gupta decided on 20
February, 2015 by Hon’ble Delhi High Court it was held that:
“The payment of property taxes by the
plaintiff is not sufficient to confer the absolute
ownership of the suit property on the plaintiff
alone.”
63. The defendant has placed reliance upon Vinod Kumar Dhall vs
Dharampal Dhall (26.04.2018 Supreme court). This case
supports the case of plaintiff only. The relevant paragraph from
this judgement is mentioned below:
“Merely the fact that house tax receipt,
electricity and water bills and otherCS NO.7664/16 & CS No. 7665/16 Page No. 57 /94
documents are in the name of Dharampal
would carry the case no further, as it was the
father who got the name changed of Kumari
Sneh Lata in question in the name of
Dharampal. The receipts were only to be
issued in the name of the recorded owner, but
Dharampal never resided in the house as he
was in service out of Delhi, obviously, the
amount was paid by family, not by Late
Dharampal. Thus, we find that no benefit
could have been derived from the aforesaid
documents.”
Thus it cannot be said that the defendant acquired ownership in
the suit property on the basis of his argument that House Tax and
Wealth Tax were being paid by him.
Lease Deed dated 30/12/1985 and Partition Suit
64. The counsel for the defendant has argued that the lease deed
dated 30/12/1985 is a void document for which there was no
formal need to approach the Court of law for cancellation. To
counter this, the plaintiff has placed reliance on the partition
suit between the parties which is discussed in detail here in
below.
65. The defendant in the present suit had filed a suit against the
CS NO.7664/16 & CS No. 7665/16 Page No. 58 /94
plaintiff in the present matter and against the Union of India for
partition which was titled as Vishwanath Dewan Vs. Vasheshar
Nath Dewan & Anr. Registered as Suit No. 2097 of 1989. Vide
order dated 15.07.2000, the plaint in the said suit was rejected
under Order VII Rule 11 of CPC. In the said suit, the
plaintiff(defendant herein) had moved an application under
Order VI Rule 17 of CPC for directing Union of India to
execute Lease Deed jointly in favour of the plaintiff(defendant
herein) and the defendant no.1(plaintiff herein) and for
declaration of the Lease Deed dated 30.12.1985 as null and
void. The said application was dismissed vide order dated
29.05.1999. A revision was preferred by the plaintiff(defendant
herein) before the Hon’ble High Court of Delhi and the same
was also dismissed vide order dated 23.08.1999, passed by
Hon’ble Mr. Justice M.K. Sharma. After the aforesaid
developments, the defendant (plaintiff herein) moved an
application under Order VII Rule 11 of CPC praying that as the
defendant(plaintiff herein) is the absolute owner of the suit
property by virtue of Lease Deed dated 30.12.1985, no cause of
action existed in favour of plaintiff (defendant herein)to file a
suit for partition. Vide order dated 15.07.2000, passed by Ms.
Bimla Makin, Ld. Additional District Judge, Delhi, the said
application under Order VII Rule 11 of CPC was allowed and
the plaint was rejected as on the basis of the Lease Deed dated
30.12.1985, the defendant(plaintiff herein) was the exclusive
CS NO.7664/16 & CS No. 7665/16 Page No. 59 /94
owner of the suit property. It was further clarified that if the
plaintiff(defendant herein) prefers to get the said Lease Deed
cancelled or set aside, the plaintiff would have fresh cause of
action to seek partition of the suit property.
66. It is pertinent to mention that the defendant herein has not
challenged the order dated 15.07.2000 before any court of law.
Further, the defendant has not taken steps before any court of
law for cancellation or setting aside of the Lease Deed dated
30.12.1985 in favour of the plaintiff which ironically he had
sought as reliefs in the suit for partition by way of an
application under Order VI Rule 17 of CPC. It is also very
important to mention that a Conveyance Deed dated 26.02.2007
has also been executed by Land and Development Office in
favour of Ms. Nisha Sawhney, being the only legal heir of the
deceased defendant, for a consideration of Rs.51,127/-
declaring Smt. Nisha Sawhney to be entitled to the suit
property.
67. The defendant has not even challenged the execution of the said
Conveyance Deed before any Court of Law.
68. I have gone through several letters which have been written by
the Defendant as well as son of the deceased defendant to the
concerned departments for adding his name as a joint owner of
CS NO.7664/16 & CS No. 7665/16 Page No. 60 /94
the suit property in the records. The said letters also depict his
knowledge that the suit property was being converted into
freehold. The said correspondence letters have been discussed
in detail in the below paragraphs. However, I fail to understand
the reason behind the defendant not taking the appropriate
remedy before any Court of Law despite being involved in the
present litigation and other litigations with the plaintiff.
Analysis of those correspondence letters is here in below :
Correspondence letters
Reliance is placed upon the documents exhibited by DW-4, Sh B
Pal, Consultant, L& DO, Ministry of Housing and Urban
Development. The letter from Sh J S Tyagi to the Secretary dated
24.8.1955 which is exhibited as Ex.DW4/34, is discussed at
length above. Perusal of the letter dated 31.10.1955 which is
Ex.DW4/32 shows that housing and rent officer is directed to
amend office record in furtherance of letter dated 24.08.1955.
Letter to Smt Mohsina Kidwai from the defendant dated
15.09.1987 is Ex.DW4/4. Perusal of the said letter suggests that
the defendant was requesting for formal lease deed in respect of
the suit property on the basis of letter dated 24.08.55, the
registration of which had not been done even on the date of
writing the letter.
Ex.DW4/5 is again letter addressed to L&DO written by
deceased defendant dated 06.12.1999. Vide the said letter, the
deceased defendant has placed reliance upon letter dated
CS NO.7664/16 & CS No. 7665/16 Page No. 61 /94
24.08.55 and has prayed for registration in the name of one of
the allottees to be cancelled and for a fresh allotment jointly in
the name of deceased plaintiff and deceased defendant.
Ex.DW4/1 is letter dated 21.12.1989 to the Secretary,
Ministry of Urban Development which is written by the counsel
for the deceased defendant whereby the defendant has raised
grievance that without investigation the true facts, the
department of Rehabilitation executed a lease deed in favour of
the deceased plaintiff on 30.12.1985 and has prayed for
cancellation of the lease deed dated 30.12.1985 and execution of
a Fresh lease deed jointly in favour of the deceased plaintiff and
the deceased defendant. It is pointed out by the counsel for the
plaintiff that the said notice was issued after the plaintiff herein
had filed Written Statement in the partition suit filed by the
defendant against the plaintiff.
Ex.DW4/8 is letter dated 15.09.1987 from the deceased
defendant to the Land & Development Officer with a request for
furnishing of a copy of lease deed in respect of the suit property.
Ex.DW4/2 is letter from deceased defendant to Hon’ble
Minister for Urban Development which is dated 30.08.2000
whereby the deceased defendant has raised his grievance about
the wrong and unlawful registration of lease deed in respect of
the suit property only in the name of one of the joint allottees.
Deceased defendant has also stated his knowledge that legal
representative of the deceased plaintiff were trying to get the suit
CS NO.7664/16 & CS No. 7665/16 Page No. 62 /94
property converted into freehold. The deceased defendant has
prayed for keeping the freehold of the suit property pending till
final decision of the case pending with respect to the suit
property.
Ex.DW4/29 is a legal opinion sought by the Ministry of
Urban Development. Neither the Plaintiff nor the defendant are
privy to the same. The counsel for the plaintiff has submitted that
his legal opinion is between the Ministry of Urban Development
and their legal advisor and is not binding upon any of the parties
to the present suit. I agree with this submission.
Ex.DW4/13 is letter dated 06.12.2000 which is sent to the
deceased plaintiff as well as the deceased defendant vide which
both the deceased plaintiff and the deceased defendant were
called for a hearing by the Land & Development Officer before
taking a final view regarding ownership of the suit property. The
counsel for the plaintiff has pointed out the plaintiff had expired
on 26.09.1997 and the said letter was only sent to the defendant.
It is pointed out by counsel for plaintiff that a tick mark at Serial
No. 2 on Ex.DW4/13 also shows that the letter was only sent to
the defendant.
Ex.DW4/14 is letter to Deputy Land and Development
Officer written by the defendant wherein he had replied to the
letter dated 06.12.2000 and had also mentioned that he and his
family had very very strained relations with the family of the
deceased plaintiff. While in his evidence by way of affidavit
CS NO.7664/16 & CS No. 7665/16 Page No. 63 /94
which is Ex.DW1/A, Sh Bhushan Dewan has stated that after the
receipt of the show cause notice dated 08.02.2000, Smt Kusum
Dewan came to his father and handed over the show cause notice
to his father and revealed that her husband ie the deceased
plaintiff was forced to do the act of preparing the lease deed by
playing fraud with the department due to his son-in-law namely
Sh Rakesh Sawhney. There is a clear contradiction in the stand
taken by the deceased defendant and later on by his son.
Ex.DW4/17 is letter dated 22.02.2001 from the defendant
to Land & Development Officer, calling for action against the
‘unlawful’ registration of lease deed dated 30.12.1985 without
cancellation of the joint allotment of the plot which still held the
field.
Ex.DW4/19 is letter dated 19.09.2001 to Land &
Development Officer by the defendant, alleging fraudulent
registration of lease deed dated 30.12.1985.
Ex.DW4/23 is letter dated 19.03.2002 to Land &
Development Officer by the defendant, again setting up his
grievance against registration of Lease deed dated 30.12.1985.
Ex.DW4/25 and Ex.DW4/26 are the letters to land and
Development Officer by the defendant on the same lines as
mentioned in his last letters.
69. The argument made by the counsel for the defendant that the
lease deed dated 30/12/1985 is a void document for which there
CS NO.7664/16 & CS No. 7665/16 Page No. 64 /94
was no formal need to approach the Court of law is in
contradiction to his earlier stand in the partition suit between
the parties. The counsel for the plaintiff has argued that on one
hand the deceased defendant in the partition suit mentioned
above was trying to seek the relief of cancellation of the lease
deed dated 30/12/1985 which was declined by the court and on
the other hand the defendant has now claimed that there was no
requirement of getting the lease deed cancelled. The defendant,
for the reasons best known to him, chose not to approach any
court of law of lease deed cancelled but on the other hand
continued to write letters to the Land and Development Office
regularly for the purpose of cancellation of the lease deed.
70. As per the witnesses brought before the court by the defendant,
it stands proved that the suit property was in the name of the
deceased plaintiff and later on mutated in the name of Smt
Nisha Sawhney . It is a settled principle of law that a registered
document is presumed to be genuine and onus to prove
otherwise is on the person who challenges it. In the present
case, the said lease deed has never been challenged by the
defendant before any court of law. Though the defendant had
objected to the execution of the said lease deed in his various
letters written to various departments, however, no prayer for
cancellation of the said deed was made before any court of law
except in his application under Order VI rule 17 of CPC filed in
CS NO.7664/16 & CS No. 7665/16 Page No. 65 /94
the partition suit which was eventually dismissed. I am of the
considered opinion that the allegation that the said lease deed is
a void document is a bald allegation which is not proved by the
defendant.
71. In the matter of Prem Singh and Ors. v. Birbal and Ors AIR
2006 SUPREME COURT 3608, it is held:-
“27. There is a presumption that a registered
document is validly executed. A registered
document, therefore, prima facie would be
valid in law. The onus of proof, thus, would be
on a person who leads evidence to rebut the
presumption. In the instant case, Respondent 1
has not been able to rebut the said
presumption.” (emphasis supplied) In view
thereof, in the present cases, the initial onus
was on the plaintiff, who had challenged the
stated registered document.”
72. Since the 1985 Lease Deed is a document which is more than
30 years old, we may advert to Section 90 of the 1872 Act,
which provides for the presumption in favour of a 30 years old
document. The same is extracted below:
“90. – Presumption as to documents thirty
years old- Where any document, purporting orCS NO.7664/16 & CS No. 7665/16 Page No. 66 /94
proved to be thirty years old, is produced from
any custody which the Court in the particular
case considers proper, the Court may presume
that the signature and every other part of such
document, which purports to be in the
handwriting of any particular person, is in that
persons handwriting, and, in the case of a
document executed or attested, that it was duly
executed and attested by the persons by whom
it purports to be executed and attested.
Explanation:- Documents are said to be in
proper custody if they are in the place in
which, and under the care of the person with
whom, they would naturally be; but no custody
is improper if it is proved to have had a
legitimate origin, or if the circumstances of the
particular case are such as to render such an
origin probable.
73. The presumption in favour of a 30 years old document is,
therefore, a rebuttable presumption. Nothing prevented the
defendant to rebut the presumption by leading appropriate
evidence in order to disprove the same. Since the defendant
failed to do so, the said document would be binding on the
defendant. To add further, the said lease deed has been actedCS NO.7664/16 & CS No. 7665/16 Page No. 67 /94
upon and conveyance deed has been registered in the name of
Smt Nisha Sawhney. During the cross examination the
defendant had deposed that he is aware of conveyance deed in
the name of Smt Nisha Sawhney. Further as per the letters
written by the defendant to the land and development office,
discussed above, the defendant had specifically written that Smt
Nisha Sahni was trying to get the suit property converted into
freehold. I fail to understand that when the defendant was aware
of all the developments pertaining to the suit property why no
steps were taken by him before any court of law challenging the
same.
74. At the end, I would like to mention that the defendant has
placed the judgement on record titled as Hari Singh vs. Madan
Lal and Ors. (24.01.2001 – DELHC). Surprisingly this decision
supports the claim of plaintiff in the present case and goes
totally against the defence raised by the defendant. Relevant
extract from the said judgement is reproduced here in below:
“We are also not convinced with the reasoning
given by the learned trial Court that the
transaction in question namely execution of
lease deed by the Government in favor of the
appellant was a sham transaction. How the
Court could dub the execution of lease deed
by the Government in favor of the appellant asCS NO.7664/16 & CS No. 7665/16 Page No. 68 /94
sham. Relying upon the judgment of Supreme
Court in the case of Custodian of Evacuee
Property, Punjab Vs. Jafran Begum, this Court
has held in the case of Riaz Ahmad (supra)
that a sale of property forming part of the
compensation pool or any order refusing to set
aside the sale cannot be challenged in Civil
Court on the ground that the sale was
collusive or was not properly published or
conducted. This was also a case governed by
Displaced person (Compensation and
Rehabilitation) Act.
13. Since the lease deed in question cannot be
treated as sham one, the reliance by learned
trial Court on various judgments to the effect
that Benami Transactions (Prohibitions) Act,
1988 would not be applicable is of no use.
The trial Court was also not right in ignoring
the judgment dated 11th April, 1991 passed by
Shri H.R.Malhotra, learned Additional District
Judge, Delhi in rejecting the plaint of the
respondent No.3 under Order 7 Rule 11(d)
holding that such a partition suit was barred in
view of Section 4 of the said Act. The said
Suit was filed by respondent No.3 forCS NO.7664/16 & CS No. 7665/16 Page No. 69 /94
partition, naturally on the allegation that she
was co-owner of the property. While rejecting
the plaint, the Court held that it was not open
for her to plead co-ownership in view of the
fact that property stood in the name of the
appellant. Therefore when such plea of co-
ownership was not held to be admissible to
the respondent No.3, how respondent No.3
could take this plea in the present Suit, after
the said judgment, is not understandable. The
learned trial Court clearly fell in error in
deciding so. The judgment dated 11th April,
1991 rendered by Shri H.R.Malhotra, learned
Additional District Judge in Suit filed by the
respondent No.3 became final as it was not
challenged. The decision would operate as res
judicata.
14. In view of the aforesaid discussion, we are
of the opinion that findings of the learned trial
Court on issues No. 4 and 7 are not correct in
law. We hold that defendants/respondents are
not co-owners in the Suit property. It is not
joint family property but appellant/plaintiff is
the exclusive owner of the property in
question. Defendants/respondents wereCS NO.7664/16 & CS No. 7665/16 Page No. 70 /94
residing therein as licensee with the
permission of the appellant/plaintiff.”
75. Thus on the basis of the above discussion at length and also
considering that the standard of proof required in a civil dispute
is preponderance of probabilities and not beyond reasonable
doubt, I have come to the conclusion that plaintiff is the owner
of the suit property.
Thus, Issue No.1 (also issue no 1 in connected case) is decided in
favour of the plaintiff and against the defendant thereby
declaring plaintiff to be the lawful owner of the suit property.
Once the ownership of the plaintiff is decided with respect to the
suit property, he has every right to seek eviction of an unlawful
occupant of the suit property. Thus, Issue No. 2 is decided in
favour of the plaintiff and against the defendant entitling the
plaintiff to recover possession of suit property from the
defendant.
76. Issue No. 5:- Whether the registered agreement dated
18/09/1957 is no agreement in the eyes of law and is fabricated
document as alleged? OPP” (Also, issue no. 4 in connected
matter)
Agreement dated 18.09.1957
The Agreement dated 18.09.1957 which is Ex.DW2/1 and
CS NO.7664/16 & CS No. 7665/16 Page No. 71 /94
Ex.DW1/3 has been placed on record by the Defendant. This
agreement is between the plaintiff and the defendant on first part
and their father Sh. Dewan Dinanath on the other part. Vide the
said agreement, it is agreed between the parties that the suit
property was allotted to the plaintiff and later on the defendant
was joined as an allottee vide allotment letter dated 24.08.1955,
as a result of which, the defendant herein became the owner of
the suit property in equal share. Through the said agreement
dated 18.09.1957, the plaintiff and the defendant herein have
been declared to be co-owners of the suit property, by the parties
to the agreement themselves.
77. It is of utmost importance to point out here that in the said
agreement dated 18.09.1957, it is agreed between the parties
that the suit property was allotted in the name of the plaintiff
herein. It is further mentioned in the said Agreement that vide
letter dated 24.08.1955, the defendant became co-owner in the
suit property. The interpretation of the letter dated 24.08.1955
has already been done by me herein above. As per the above
discussion, the letter dated 24.08.1955, confers no title upon
any of the parties to the present suit, which is the foundation of
the agreement dated 18.9.1957. Thus, the family agreement
dated 18.09.1957, has been totally based on a wrong premise
and bilateral mistake of fact which would render the agreement
void as per section 20 of the Indian Contract Act which is
CS NO.7664/16 & CS No. 7665/16 Page No. 72 /94
reproduced under:
“20. Agreement void where both parties are
under mistake as to matter of fact.–
Where both the parties to an agreement are
under a mistake as to a matter of fact essential
to the agreement the agreement is void.”
78. The whole basis of division of property as per the agreement
dated 18.09.1957 is based on the letter dated 24.08.1955 which
is not conveying any right, title or interest in favour of any of
the parties. It is pertinent to mention that the agreement dated
18.09.1957 is a registered agreement, however, when the basis
of the agreement dated 18.09.1957 is a misconception and
bilateral mistake of fact, no reliance can be placed on the
contents of the agreement dated 18.09.1957 which is in itself a
void agreement.
79. To add further, the defendant herein had filed a suit against the
plaintiff herein for partition which is registered as No. 2097 of
1989. Vide order dated 15/07/2000 the plaint in the said suit
was rejected under Order VII Rule 11 of CPC. The defendant
herein had relied upon the family settlement dated 18/09/1957
in the said suit which was not considered by the court on the
ground that there existed a registered lease deed in favour of the
plaintiff herein. The said order dated 15/07/2000 has never been
CS NO.7664/16 & CS No. 7665/16 Page No. 73 /94
challenged and thus, has attained finality. Thus, it is absolutely
clear that the agreement dated 18/09/1957 was not considered
by the court as being a binding family settlement and the said
order has even attained finality now.
80. Now, the said agreement dated 18.09.1957 has been placed on
record by the defendant. The plaintiff has averred in para no.4
of his plaint that the father of the plaintiff got some blank
papers signed from the plaintiff and on the said blank papers
got prepared forged and fabricated and alleged agreement dated
18.09.1957 giving share in the property to the defendant. On the
execution of the agreement dated 18.09.1957, certain questions
were put to PW-3 Rakesh Sawhney. PW-3 deposed that the
signatures at point ‘A’ and ‘B’ of the agreement dated
18.09.1957, which is Mark DA are similar to his father-in-law,
however, he could not say that the handwriting encircled in red
was his handwriting or not. Even otherwise, PW-3 is neither the
executant of the agreement dated 18.09.1957 nor a witness to
the same. His testimony on the agreement dated 18.09.1957 is
purely hearsay in nature and cannot be permitted in law.
81. As per order dated 27.03.2002, additional Issue No. 2A was
framed by this Court. It is mentioned in the order sheet that :
“It may be mentioned that it is not the plaintiff
but it is the defendant who is placing relianceCS NO.7664/16 & CS No. 7665/16 Page No. 74 /94
on this agreement and now the defendant has
placed on record that agreement. Under these
circumstances, in order to sort out the
controversies between the parties, following
additional issue is being framed :
Addition Issue No. 2A
Whether the registered agreement dated
18.09.1957 is not agreement in the eye of law
and is fabricated document as alleged ? OPP”
82. During the course of arguments, the counsel for the plaintiff has
strongly submitted that the agreement dated 18.09.1957 was
neither placed by him on record nor had he ever sought
declaration of the said agreement as non est in the eyes of law
and a fabricated document. Despite having not prayed for so,
the onus to prove this issue was wrongly placed upon the
plaintiff. The plaintiff has prayed for striking out this issue. I
find merit in the submissions made by the plaintiff. The
relevant extracts from the order sheet dated 27.03.2022
mentioned above, clearly convey that the reliance was placed
on the agreement dated 18.09.1957 by the defendant. Thus, the
onus to prove the said agreement ought to be on the defendant.
Without going into further controversy on this issue, as
discussed above, the very foundation of the agreement dated
18.09.1957 is misconceived and hence it cannot be concluded
CS NO.7664/16 & CS No. 7665/16 Page No. 75 /94
that vide the said agreement any lawful division of the property
has been done. Since it is non est in law, there is no requirement
of proving whether it was fabricated or not.
83. Thus, it can be safely concluded that the agreement dated
18/09/1957 is no agreement in the eyes of law being based upon
mistake and misconception and also being already rejected by
court of law in a prior suit.
84. On the aspect of family settlement, the defendant has placed
reliance upon the following judgments:
Gopal Kishan vs. Ram Saroop (22.09.2017 – DELHC)
“15- A Family Settlement, it was held as far
back as in Kale v. Deputy Director of
Consolidation, MANU/SC/0529/1976 : 1976
(SLT Soft) 4 : (1976) 3 SCC 119, is to be
viewed without the technicalities of law and to
be honoured.”
Vimla Monga and Ors. vs. Ramlubhai and Ors. (31.03.2014 –
DELHC)
Suresh Srivastava and Ors. vs. Subodh Srivastava and Ors.
(31.08.2012 – DELHC)
“14. I must at this stage state that Courts have
repeatedly observed that family settlements
which settle the disputes between the parties,
CS NO.7664/16 & CS No. 7665/16 Page No. 76 /94
bring family peace, and therefore peace in the
community must be endeavoured to be upheld
and not to be set aside. I think this rationale
squarely applies in the facts of the present case.
That a family settlement is not required to be
stamped or registered is now well settled law
and reference can be made to the celebrated
judgment in the case of Kale & Ors. Vs. Dy.
Director of Consolidation & Ors.
MANU/SC/0529/1976 : AIR 1976 SC 807.”
85. These judgments, however, cannot be relied upon in the present
case as the family settlement dated 18/09/1957 is held to be a
void agreement on the basis of the findings mentioned above.
86. Even though this issue was never pressed upon by the plaintiff
to be framed, but still onus to prove the same was put upon him.
The plaintiff has been able to discharge the burden of proving
the said issue in his favour. Thus issue No. 5 (issue No. 4 in the
connected case) stands proved in favour of the plaintiff and
against the defendant.
87. Issue No. 6:- Whether the suit property bearing number I-41,
Jangpura Extension , New Delhi is ancestral property of the
parties as stated in the written statement? OPD
CS NO.7664/16 & CS No. 7665/16 Page No. 77 /94
The burden to prove this issue is upon the defendant. It is
pleaded by the defendant that since the construction money in
respect of construction of the suit property was paid by the father
of the parties, the suit property had become ancestral in nature.
88. The issue wise findings on the issue related to construction
money have already been discussed above in the findings on
Issue No. 1.
89. The nature of the suit property being ancestral is also pleaded
on the ground that the ground rent in respect of the suit property
was adjusted from the claim compensation due to the father of
the deceased plaintiff and the deceased defendant. The
defendant has also pleaded that the construction of suit
premises was funded through compensation received along with
rental income from agricultural land owned by father of the
parties in Ambala. The Conveyance deed for the house in
Ambala is Ex.DW1/12 and Ex.PW3/DX15 collectively. The
original Khatauni issued to father of the parties is also a part of
the exhibited documents. It is further argued that letter dated
01/10/1960 from the father of the parties to the Ministry of
rehabilitation requesting adjustment of ground rent arrears
associated compensation asking for joint allotment of suit
property the parties also shows that the property is ancestral. It
is stated by PW3 that this letter acknowledges a payment of ₹
CS NO.7664/16 & CS No. 7665/16 Page No. 78 /94
75/- made by the deceased plaintiff towards the suit property.
The counsel for the defendant has contended that there are
significant discrepancies between the content of the letter and
the claim, particularly regarding the handwriting of the letters
final paragraph which indicates that it was added maliciously.
Attention is also pointed out to the letter dated 01/11/1957 in
which the plaintiff requested the housing and rent officer to
apply the ground rent arrears for the suit premises against the
compensation owed to the father of the parties against the
properties left behind in Pakistan.
90. On the basis of these submissions, the counsel for the defendant
has argued that the family settlement dated 18/09/1957 is a fair
document dividing the properties to all the branches in equal
proportion.
91. The findings with respect to the family settlement dated
18/09/1957 have already been given above whereby it is
concluded that the family settlement dated 18/09/1957 is void
document which has also been rejected by the Court in a
previous litigation between the parties. Issue No.1 has already
been decided in favour of plaintiff holding the plaintiff to be
owner of the suit property.
92. Further, it is a settled principle of law that presumption of
CS NO.7664/16 & CS No. 7665/16 Page No. 79 /94
ownership cannot be raised only on the basis of payment of
construction money and payment of ground rent as averred by
the defendant. The defendant has claimed the property only on
the basis of construction money being paid by the father of the
deceased parties to the suit. The nature of the suit property
being ancestral is not proved by any other means. Since the
onus to prove this issue was upon the defendant, the defendant
has failed to prove the same.
93. After passing of the Hindu Succession Act, 1956 the position
which traditionally existed with respect to an automatic right of
a person in properties inherited by his paternal predecessors-in-
interest from the latter’s paternal ancestors up to three degrees
above, has come to an end. Under the traditional Hindu Law
whenever a male ancestor inherited any property from any of
his paternal ancestors up to three degrees above him, then his
male legal heirs up to three degrees below him had a right in
that property equal to that of the person who inherited the same.
94. Putting it in other words when a person ‘A’ inherited property
from his father or grandfather or great grandfather then the
property in his hand was not to be treated as a self- acquired
property but was to be treated as an HUF property in which his
son, grandson and great grandson had a birth right in property
of ‘A’.
CS NO.7664/16 & CS No. 7665/16 Page No. 80 /94
95. After passing of the Hindu Succession Act, 1956, this position
has undergone a change and if a person after 1956 inherits a
property from his paternal ancestors, the said property is not an
HUF property in his hands and the property is to be taken as a
self-acquired property of the person who inherits the same.
There are two exceptions to a property inherited by such a
person being and remaining self-acquired in his hands, and
which will be either an HUF and its properties was existing
even prior to the passing of the Hindu Succession Act, 1956 and
which Hindu Undivided Family continued even after passing of
the Hindu Succession Act, 1956, and in which case since HUF
existed and continued before and after 1956, the property
inherited by a member of an HUF even after 1956 would be
HUF property in his hands to which his paternal successors-in-
interest upto the three degrees would have a right.
96. The second exception to the property in the hands of a person
being not self- acquired property but an HUF property is that if
after 1956 a person who owns a self-acquired property throws
the self-acquired property into a common hotchpotch whereby
such property or properties thrown into a common hotchpotch
become Joint Hindu Family properties/HUF properties. In order
to claim the properties in this second exception position as
being HUF/Joint Hindu Family properties/properties, a plaintiff
CS NO.7664/16 & CS No. 7665/16 Page No. 81 /94
has to establish to the satisfaction of the court that when (i.e
date and year) was a particular property or properties thrown in
common hotchpotch and hence HUF/Joint Hindu Family
created.
97. Thus, the submissions that the property is ancestral in nature are
bald submissions not supported by any concrete evidence as
against registered documents in favour of the plaintiff. Hence,
issue No. 6 is decided against the defendant and in favour of the
plaintiff.
98. Issue No. 7:- Whether the suit is barred under the provision of
Section 53A of Transfer of Property Act? OPD
The onus to prove this issue is upon the defendant. Before giving
my findings on this issue, it is relevant to cite Section 53-A of
Transfer of Property Act.
“53A. Part performance.–
Where any person contracts to transfer for
consideration any immoveable property by
writing signed by him or on his behalf from
which the terms necessary to constitute the
transfer can be ascertained with reasonable
certainty, and the transferee has, in part
performance of the contract, taken possession
of the property or any part thereof, or theCS NO.7664/16 & CS No. 7665/16 Page No. 82 /94
transferee, being already in possession,
continues in possession in part performance of
the contract and has done some act in
furtherance of the contract, and the transferee
has performed or is willing to perform his part
of the contract, then, notwithstanding that
where there is an instrument of transfer, that
the transfer has not been completed in the
manner prescribed therefor by the law for the
time being in force, the transferor or any
person claiming under him shall be debarred
from enforcing against the transferee and
persons claiming under him any right in
respect of the property of which the transferee
has taken or continued in possession, other
than a right expressly provided by the terms of
the contract: Provided that nothing in this
section shall affect the rights of a transferee for
consideration who has no notice of the
contract or of the part performance thereof.”
99. It goes on to say that whenever there is a case where an
individual has accepted possession of an immovable property
subject to a contract for its transfer, and the transferee has
performed or is ready to perform his part of the contract, the
CS NO.7664/16 & CS No. 7665/16 Page No. 83 /94
transferor shall not protect his rights against the transferee, even
though such a transfer has not been made through a registered
instrument.
100. However, this protection does not amount to establishing rights
and again does not vest ownership rights. It only offers a shield
to the transferee for protecting possession but does not enable
the transferee to claim rights as owner.
101. Shri Sanjay Verma vs. Shri Manik Roy and Ors. (2006)
It is reiterated by the Supreme Court in this case that Section
53A does not give rights of ownership to the transferee. It only
serves as protection against transferor or successors in interest. It
was held that the transferee could protect their possession but
cannot claim ownership unless there is a fulfilment of such
transfer by a registered deed. In plain words, it can be said that
Section 53A provides limited protection under the doctrine of
part performance but does not replace the need for formal
registration of property transfer to claim full ownership rights.
The Supreme Court has clarified that while Section 53A may
avoid dispossession, it cannot vest title in the absence of proper
legal procedures.
102. In the present facts, on the basis of findings on issue no.1, it is
established that the plaintiff is the owner of the suit property.
CS NO.7664/16 & CS No. 7665/16 Page No. 84 /94
Further, it not the case of the Plaintiff that he ever contracted to
transfer for consideration the suit property. Thus, no question of
transferring ownership in favour of defendant arises in the
absence of any such contract between the parties. As per the
case of the defendant, plaintiff had agreed to have joint
allotment of the suit property. However, the said letter was not
acted upon by the concerned department and lease deed was
executed in favour of the plaintiff dated 30.12.1985. The
plaintiff has filed the present suit for recovery of possession
against the defendant. However, it appears that the defendant is
trying to seek declaration with respect to his co ownership in
the suit property (as believed by the defendant) by way of the
plaintiff’s suit. My attention is drawn to the argument made by
the counsel for the plaintiff candidly that what would the
defendant get if the plaintiff simply withdraws the present suit !
Of course, no title would vest upon the defendant in that case. It
is a simple case of clever drafting whereby through the suit
filed by the plaintiff, the defendant is trying to seek the relief of
declaration of co-ownership and cancellation of lease deed
dated 30.12.1985 in his favour, which is not permissible as per
law. Thus, in the present facts there is no application of the
doctrine of part performance as provided in section 53A of the
Transfer Of Property Act. Hence, issue No. 7 is decided against
the defendant.
CS NO.7664/16 & CS No. 7665/16 Page No. 85 /94
103. Issue No. 8:- “Whether the suit is not maintainable in view of
withdrawal of the same by the plaintiff no 1 Smt Kusum Dewan
vide order dated 3/05/2006 of this court? OPD”
The burden to prove this issue is upon the defendant. On
26/9/1997, the plaintiff in the main suit expired and his wife Smt.
Kusum Dewan and his only daughter Ms. Nisha Sawhney were
impleaded as his legal heirs vide order dated 17.11.1996. On
31.05.2004, an application was filed on behalf of Smt. Kusum
Dewan vide which she had withdrawn her General Power of
Attorney in favour of her son-in-law Sh. Rakesh Sawhney and
also withdrawn her vakalatnama in favour of her counsel, Sh.
Yash Pal Ahuja in the main suit as well as in the connected case.
She also stated that since the plaintiff and the defendant were co-
owners of the suit property, she did not want to proceed with the
case and therefore withdrew her case. Separate statement of Smt.
Kusum Dewan was recorded on 13.07.2004.
104. The Counsel for the plaintiff has pointed out to preliminary
objection no.6 of the amended written statement filed by the
defendant, wherein, it is written that the said application dated
31.05.2004, was written by Smt. Kusum Dewan and she herself
appeared before the Court along with her Counsel and her
statement was recorded in the presence of her Counsel Sh. Y.P.
Ahuja. It is stated by DW-1 Sh. Bhushan Dewan in his cross-
examination that Smt. Kusum Dewan could only sign. It is
CS NO.7664/16 & CS No. 7665/16 Page No. 86 /94
therefore difficult to believe that a lady who could only sign
had written an application and letters dated 31.05.2004 on her
own.
105. The counsel for the defendant has stated that PW3 on
23/10/2008 and also on 26/03/2009 stated that he was not aware
of any application or statement being made by Smt Kusum
Dewan, but no reply as to why Smt Kusum Dewan made the
said statement for withdrawal of the case all power of attorney
after executed relinquishment deed was given by PW-3. Even in
his cross-examination on 09/11/2017, PW-3 stated that he never
met Smt Kusum Dewan with regard to her statement on
13/07/2004. I don’t find anything crucial in the said cross-
examination of PW-3 as pointed out by the counsel for the
defendant.
106. It is pertinent to mention here that after the death of the
plaintiff, he was represented by his two legal heirs namely Smt.
Kusum Dewan being his wife and Smt. Nisha Sawhney being
his daughter.
107. Firstly, the suit could not be withdrawn by one legal
representative alone without the consent of another legal
representative and even otherwise, the withdrawal of the suit by
Smt. Kusum Dewan on 31.05.2004 would have no validity in
terms of the relinquishment deed executed by her in favour of
CS NO.7664/16 & CS No. 7665/16 Page No. 87 /94
Smt. Nisha Sawhney on 31.03.2004, after which Smt Kusum
Dewan was left with no right in the suit property. The
relinquishment deed is now discussed herein below :
108. Relinquishment Deed
It is submitted by Counsel for the defendant that upon the
withdrawal of the present case by Smt. Kusum Dewan, the
plaintiff, Smt. Nisha Sawhney in collusion with her attorney filed
an application under Order XXII Rule 10 of CPC informing that
Smt. Kusum Dewan has relinquished her share in the suit
property in favour of Ms. Nisha Sawhney vide relinquishment
deed dated 31.03.2004 which is Ex.PW3/14. The defendant has
stated that the said relinquishment deed could not be executed as
the matter was sub-judice and also that the said relinquishment
deed has got executed by playing a fraud upon Mrs. Kusum
Dewan.
109. It is correct that the relinquishment deed dated 31.03.2004
Ex.PW3/14 is not a part of pleadings. However, since the
relinquishment deed is a registered document, this Court has
power to take judicial notice of the same. During his cross-
examination, DW-1 Sh. Bhushan Dewan, has admitted that on
31.03.2004, an alleged relinquishment deed has been executed
by Smt. Kusum Dewan in favour of her only daughter
Ms.Nisha Sawhney with consideration. DW-1 Sh. Bhushan
Dewan had stated that the said relinquishment deed got
CS NO.7664/16 & CS No. 7665/16 Page No. 88 /94
executed fraudulently. In my opinion, I do not find merit in the
submission that the said relinquishment deed was executed
fraudulently. The nature of fraud has not been explained by the
defendant. I find no satisfying answer that why a mother who is
only survived by a daughter cannot execute a relinquishment
deed in favour of her only daughter. Even if it is to be believed
that the said document was obtained by fraud, only Smt. Kusum
Dewan could have testified about the same. Bald submissions
against a registered document cannot sustain in law. Hence, I
find no infirmity in the execution of the said Relinquishment
Deed. Since, Smt. Kusum Dewan had executed relinquishment
deed in favour of Ms. Nisha Sawhney on 31.03.2004, her
withdrawal from the present case on 31.05.2004 would have no
consequence.
110. The defendant has raised objections regarding the authenticity
of the said Relinquishment Deed. The defendant has pointed out
to the page no. 9 (last page) of the Relinquishment Deed where
the photograph of the first party, i.e. Kusum Dewan, is missing
while the photo of the second party and the witness is present.
It is pertinent to mention that the Relinquishment Deed is a
registered document vide registration no. 3757 in Book No. I
Volume no. 3923 on page no. 97 to 104. The same contains
certificate u/s 60 of the Sub-Registrar that left thumb
impressions have been taken in his presence. Further, the said
CS NO.7664/16 & CS No. 7665/16 Page No. 89 /94
Relinquishment Deed is signed on all the pages by Smt. Kusum
Dewan. Page 1 of the said Relinquishment Deed contains the
photographs of Smt. Kusum Dewan as releasor and Smt. Nisha
Sawhney as the releasee. Even on the back page 2 of the
relinquishment deed, it is stated that the execution is admitted
by Smt Kusum Dewan and Smt Nisha Sawhney are identified
by Sh S L Chaudhary and Sh Surinder Mohan Handa. It is
further mentioned that contents of the document were explained
to the parties to understand the condition and admit them as
correct. The said Relinquishment Deed is executed with
consideration. I find no infirmity in the execution of the said
Relinquishment Deed. Further, the Counsel for the plaintiff has
explained that he had inquired from the office of Sub-Registrar
about the missing photograph on the last page upon which he
was informed that the same got missed due to technical glitch.
The argument raised by the defendant that Smt. Kusum Dewan
was not present at the time of execution of Relinquishment
Deed only on this ground does not find any weight. The said
Relinquishment Deed is a registered document and the valid
execution and registration of the same can be duly presumed
under law. Further, the defendant has not sought any relief of
declaration of the said Relinquishment Deed as null and void
before any Court of law.
111. The onus to prove the present issue was upon the defendant.
CS NO.7664/16 & CS No. 7665/16 Page No. 90 /94
The defendant has failed to prove that how withdrawal by
plaintiff no.1 would also be binding upon the plaintiff No. 2.
Further, it is clear from the relinquishment dated 31/03/2004
that the plaintiff number 1 Smt Kusum Dewan had already
relinquished her share in favour of the plaintiff No. 2.
Withdrawal of suit by plaintiff number 1, even if it is to be
believed, would not operate upon the plaintiff No. 2 and even
otherwise, when the plaintiff number 1 had already relinquished
her share in favour of plaintiff No. 2, the plaintiff number 1 was
left with no right in the suit property. Thus, it cannot be
lawfully said that withdrawal of the suit by plaintiff number 1
would result in non maintainability of the present suit. Thus
issue No. 8 is decided in favour of plaintiff and against the
defendant.
112. Issue No. 9 of the main case and Issue No. 5 of the connected
case
“9. Whether the plaintiff is entitled to recover the Mesne profits,
at what rate and to what amount? OPP”
“5. Whether the plaintiff is entitled to the relief claimed?”
The findings on this issue are consolidated with the relief sought
by the plaintiffs in the connected matter.
On the basis of the above findings, it is held that the plaintiff is
the lawful owner of the suit property and is therefore entitled to
recover the possession of the suit property from the defendant.
CS NO.7664/16 & CS No. 7665/16 Page No. 91 /94
The plaintiff has sought mesne profits amounting to
Rs.1,44,000/- along with interest at the rate of 15% per annum
from the date of decree till the date of payment. However, no
cogent evidence has been adduced by the plaintiff to prove the
same.
113. Section 2(12) of the CPC defines the mesne profits of property
as meaning those profits which the person in wrongful
possession of such property actually received or might with
ordinary diligence have received therefrom, together with
interest on such profit. Thus, what is to be the rate of mesne
profits, is to be determined by evidence and is not a matter of
contract. It is also a settled law applying the provisions of
Section 57 and Section 114 of Indian Evidence Act, 1872 that
while calculating the mesne profits, certain amount of guess
work by the Court is inevitable and acceptable.
114. It is significant to mention here that the present suit was filed in
the year 1990 and connected case in the year 2003. Such long
course of litigation has a far-reaching, detrimental impact on the
legal system. It not only clogs the Courts with unnecessary
litigation but also delays the hearing of genuine cases that are
patiently awaiting their turn to be addressed. Such delays
undermine the efficiency of the judiciary, causing distress to
litigants. Therefore, it is imperative that the advocates, being
CS NO.7664/16 & CS No. 7665/16 Page No. 92 /94
officers of the Court, undertake a responsibility to preserve the
integrity of the judicial process and ensure timely justice for
those with legitimate grievances.
115. Since the defendants are held to be in unauthorized occupation
and plaintiff is entitled to possession and also keeping in view
that a very nominal amount has been sought as a relief by the
plaintiff, considering the location of the suit property and its
current market value, I am inclined to award consolidated
damages in both the suit to the plaintiff @ Rs. 4000/- per month
from the filing of the suit till handing over of the possession of
the suit property. The plaintiff is also entitled to interest @ 6 %
per annum from the date of filing of the suit till its realization.
116. Relief:
In view of the above discussion, the suit filed by plaintiff is
decreed with the following reliefs:-
(i) A decree of Possession in respect of Ground Floor of Plot
No. I-41, Jangpura Extension, New Delhi-110014.
(ii) Consolidated damages in both the suit to the plaintiff @
Rs. 4000/- per month from the filing of the suit till
handing over of the possession of the suit property.
(iii) Plaintiff is also entitled to interest @ 6 % per annum from
the date of filing of the suit till its realization.
(iv) Cost of the suit.
CS NO.7664/16 & CS No. 7665/16 Page No. 93 /94
117. Pending applications if any, are disposed of accordingly.
118. Decree sheet be prepared accordingly. File be consigned to
record room as per rules.
Digitally signed
GOMA by GOMA
DABAS GUPTA
DABAS Date:
Announced in the open court on 2025.03.12
GUPTA 17:23:29
+0530
12.03.2025
(Goma Dabas Gupta)
District Judge-06
West District, Tis Hazari Courts,
Delhi/12.03.2025
CS NO.7664/16 & CS No. 7665/16 Page No. 94 /94
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