Delhi District Court
Praveen And Ors vs Neelkath Promotors Pvt Ltd And Ors on 16 July, 2025
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02:
NORTH ROHINI COURTS COMPLEX: DELHI
CNR No. DLNT01-008429-2016
CS DJ No. 1974/2016
IN THE MATTER OF:-
1. Praveen S/o Sh. Suresh Kumar
2. Babli D/o Sh. Suresh Kumar
3. Sunita D/o Sh. Suresh Kumar
4. Ravi (Minor, aged 16 years) S/o Sh. Suresh Kumar
5. Manita (Minor aged 17 years) D/o Shri Suresh Kumar
All are represented through their mother
Smt. Sheela W/o Shri Suresh Kumar
R/o Village-Sultanpur Dabbas,
Delhi-110082. .....Plaintiffs
Versus
1. Neelkanth Promotors Pvt. Ltd.
Through Director Shri Suresh Chand Garg
Flat No. 34/1, Vikas Apartments,
Punjabi Bagh (East), New Delhi-110026.
Also at:
Suresh Chand Garg S/o Shyam Sunder Garg
CS DJ No. 1974 / 2016
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R/o C-2/19, West Enclave,
Pitampura, Delhi-110034.
2. Shri Suresh Kumar S/o Late Bhor Singh
Village-Sultanpur Dabbas,
Delhi-110082.
3. Sub-Registrar
Alipur, District-North,
Delhi-110082.
4. Tehsildar / CO
Office of SDM
Naya Bans, Narela
District-North, Delhi-110082.
5. Deputy Commissioner
District-North, Civil Lines,
Delhi-110054.
.....Defendants
Date of filing (Before Hon'ble DHC) : 23.10.2013
Date of institution before District Court : 03.08.2016
Date of Conclusion of Argument : 12.07.2025
Date of Order Judgment : 16.07.2025
SUIT FOR DECLARATION, PARTITION, POSSESSION AND
PERMANENT INJUNCTION
CS DJ No. 1974 / 2016
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JUDGMENT
1. Vide this judgment, this court shall decide the present suit filed by
the plaintiffs for declaration, partition, possession and permanent
injunction.
2. The instant suit was initially filed before the Hon’ble High Court
of Delhi. Vide order dated 16.02.2016 passed by learned joint Registrar
judicial pursuant to Notification No. 2718/DHC/Orgl. Dated
24.11.2015, present suit was transferred to North District, Rohini
Courts, Delhi.
PLAINTIFF’s CASE
3. Omitting unnecessary details and giving due prominence to
material circumstances, facts as borne out from the record are that the
plaintiffs have filed the present suit for declaration, partition,
possession and permanent injunction with respect to suit land as
detailed in para 3 of the plaint i.e.:
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“11 Bighas 45 biswas vide Mutation No. CO/324/99-2000as per mention in Farad/Khewat No. 22 in Khasra no. 45/6(4-0), 46/9
(4-10) issued by Patwari Village Sultanpur Dabbas, Delhi (hereinafter
called as the suit property)”.
4. It is further case of the plaintiffs that Sh. Suresh Kumar has two
sons and three daughters (the two sons and three daughters are the
plaintiffs in present suit). Sh. Suresh Kumar is defendant no. 2.
5. It is case of the plaintiffs that Sh. Suresh Kumar was married with
Smt. Sheela in 1988. Eldest daughter was born on 19.10.1989. Plaintiff
no. 3 was born on 19.01.1992. Plaintiff No. 1 was born on 28.12.1994.
Plaintiff no. 5 was born on 30.11.1995. Youngest child plaintiff no. 4
was born on 19.12.1997. It is case of plaintiffs that plaintiffs along with
defendant no. 2 i.e. their father are entitled to equal share in suit
property inherited by second defendant (para 2 of the plaint). The
pedigree table in para No. 2 of the plaint shows that plaintiffs are
children of Sh. Suresh Kumar (father of plaintiffs). Sh. Suresh Kumar is
son of late Sh. Bhor Singh who died in 1962 (Grandfather of plaintiffs).
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Sh. Bhor Singh is son of late Sh. Kundan Singh (great-grandfather of
plaintiffs). It is case of plaintiffs that defendant no. 2 is in possession
and is cultivating the suit land. It is pleaded that defendant no. 2 is
addicted to alcohol. defendant no. 1 is a professional Builder. Local
property dealers namely Ranvir Singh and Samar Singh told defendant
no. 1 about weakness of defendant no. 2. Defendant No. 1 got executed
Sale Deed in his favour at throw away price in inebriated condition.
Plaintiffs came to know about the transaction only in June 2010 when
agents of defendant no.1 came to possession for sowing in suit land.
6. It is pleaded that Sale Deed dated 10.09.2007 and Mutation dated
08.10.2007 in favour of defendant no. 1 are void ab initio. It is further
pleaded that sale is hit by Section 8 (2)(a) of Hindu Marriage and
Guardianship Act, 1956. It is also pleaded that earlier suit No. 113/2013
was withdrawn with liberty to file fresh suit.
7. It is further pleaded that Sale Deed is in contravention of The
Delhi Land Reforms Act, 1954. Pendency of a criminal complaint for
fraud and cheating is also mentioned.
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8. With these averments, the present suit for declaration that Sale
Deed dated 10.09.2007 as null and void, with further prayer for
partition and prayer for permanent injunction has been filed.
CASE OF DEFENDANT NO. 1.
9. Defendant no. 1 is the main contesting defendant. It has been
objected that suit is not properly valued and appropriate court fees has
not been filed. An objection is taken that brothers and sisters of
Sh. Suresh Kumar have not been impleaded in the present case.
Objection is taken that u/s 185 of Delhi Land Reforms Act only revenue
courts have jurisdiction. Suit is stated to be time barred under Articles
58 and 59 of The Limitation Act.
10. On merits. it is case of defendant no. 1 that plaintiffs have no
right in suit land. Suit land is an agriculture land and was exclusively in
name of defendant no. 2 in the revenue record. defendant no. 2 alone
was competent to sell suit property. By covenant in the Sale Deed
defendant no. 2 had agreed to sell the land free from any legal defect. It
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was further agreed that legal heirs of vendor i.e. Sh. Suresh Kumar,
defendant no. 2 will have no right, title and interest in the suit property.
It is further pleaded that present suit is a collusive suit as plaintiffs have
impleaded their father as defendant no. 2. It is further replied that
defendant no. 2 was not drunk and had duly executed the sale deed in
front of Sub-Registrar in good health and sound disposing mind.
11. It is further averred that possession is with the answering
defendant since 2006. With these averments, dismissal of suit is prayed
for.
CASE OF DEFENDANT NO. 2.
12. Defendant no. 2 is father of plaintiffs. He has averred that there
was agreement to pay Rs. 4,64,00,000/- (Rs. Four crore and Sixty four
lakhs only) qua the suit property. When defendant no. 1 did not pay this
amount despite demand, defendant no. 2 visited the Police Station. No
action was taken by the police. A criminal complaint was filed, which is
pending trial. Receipt of Rs 36,51,260/- by cheque dated 10.10.2006 is
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admitted. It is averred that sale deed was got executed in drunken state.
The prayer clause supports the prayers made in the plaint.
13. Right of defendants no. 3 to 5 to file written statement was closed
vide order dated 26/02/2015 passed by by learned joint Registrar
judicial.
REPLICATION
14. Replication dated 08.04.2015 to the written statement filed by the
defendant no. 1 was filed by the plaintiffs. All the facts of the plaint
were reiterated and submissions in Written Statement were denied.
ISSUES
15. From the pleadings of the parties, following issues were framed
by the Ld. Predecessor of this court vide order dated 29.07.2019 :-
1. Whether the suit of the plaintiff is entitled for declaration
regarding sale deed registered in book I, Volume No. 1083 vide
No. 9853 dt. 10.09.2007 as null and void against the plaintiff as
prayed in prayer clause (I) of the plaint?OPPCS DJ No. 1974 / 2016
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2. Whether the plaintiff is entitled for decree of partition in land
admeasuring 11 Bigha 45 Biswa in farad /Khewat No. 22 in Kh.
No. 45/6 (4-0), 46/9 (4-10) in village Sultanpur Dabas, Delhi as
prayed in prayer clause (ii) of the plaint?OPP
3. Whether the plaintiff is entitled for permanent injunction as
prayed in prayer clause (iii) of the plaint? OPP
4. Whether the present suit is barred by law of limitation? OPD1
5. Whether the present suit has been affixed with appropriate court
fees?OPD1
6. Whether the present suit is barred by Section 185 of Delhi Land
Reforms Act?OPD1
7. Whether the present suit is not maintainable in view of provisions
of Section 10 & 11 CPC?OPD1
8. Whether the present suit is not maintainable in view of non-
joinder of necessary party?OPD1
9. Whether in the present suit there is collusion between the
defendant no. 2 and plaintiff and hence not maintainable?OPD1
10.Relief.
16. PLAINTIFF EVIDENCE
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Sr. Name of witness Remarks/documents tendered
No.
1. PW1 Smt. Sheela is PW 1 tendered her evidence by way of
mother of plaintiffs affidavit Ex.PW1/A and relied upon
the following document:
1. Original copy of GPA dated
08.09.2013 as Ex.PW1/1 (three pages,
colly.)
2. Site plan of the property in question
as Ex.PW1/2
2. PW2 Ravi Kumar He tendered his evidence by way of
(Plaintiff No. 4) affidavit Ex.PW2/A and relied upon
the following documents:
1. Aadhar Card as Ex.PW2/1 (OSR)
and
2. Site plan of the property in question
already exhibited as Ex.PW1/2 in the
evidence of PW1.
3. PW3 Sh. Praveen Kumar He tendered his evidence by way of
(Plaintiff No. 1) affidavit Ex.PW3/A and relied upon
the following documents:
1. Copy of plaint as Ex.PW3/X.
2. Site plan mentioned in the
affidavit as PW1/1 alreadyCS DJ No. 1974 / 2016
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exhibited as P-1.
3. Copy of Khatoni consolidation
dated 09.11.2005 mentioned in
the affidavit as Ex.PW1/2 is
already Ex.P-2.
4. Certified copy of sale deed no.
9853 dated 10.09.2007
mentioned in the affidavit as
exhibited as Ex.PW1/3 is already
Ex.P-3.
5. Certified copy of mutation order
mentioned in the affidavit as
exhibited as Ex.PW1/4 is already
Ex.P-4.
6. Copy of original Khatoni dated
10.09.2007 mentioned in the
affidavit as exhibited as
Ex.PW1/5 is already Ex.P-5.
7. Copy of original Khatoni / Fard
(Khasra Girdwari) dated
10.09.2007 mentioned in the
affidavit as exhibited as
Ex.PW1/6 is already Ex.P-6.
8. Original GPA dated 08.10.2013
mentioned in the affidavit as
exhibited as Ex.PW1/7 is alreadyCS DJ No. 1974 / 2016
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Ex.PW1/1.
9. Copy of Marksheet of Praveen
mentioned in the affidavit as
exhibited as Ex.PW1/8 is already
Ex.P-11.
10. Certified copy of Mutation
Appeal No.67/DC/NW/05 dated
30.11.2005 u/s 65 (B) DLR Act
mentioned in the affidavit as
exhibited as Ex.PW1/9 is already
Ex.P-12.
11.Certified copy of Mutation
Appeal No.104/DC/NW/11 dated
08.11.2011 u/s 65 (B) DLR Act
mentioned in the affidavit as
exhibited as Ex.PW1/10 is
already Ex.P-13.
12.Certified copy of Revenue case
dated 08.11.2011 u/s 83 of Delhi
Land Reform Act mentioned in
the affidavit as exhibited as
Ex.PW1/11 is already
Ex.PW1/D-1/1.
13.Certified copy of withdrawal
order dated 24.06.2013 passed by
Ms. Sukhvinder Kaur, Ld. ADJ,
Rohini, Delhi mentioned in theCS DJ No. 1974 / 2016
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affidavit as exhibited as
Ex.PW1/12 is already Ex.P-15.
14.Certified copy of suit
No.113/2013 filed by the
defendant mentioned in the
affidavit as exhibited as
Ex.PW1/13 is already Ex.P-16.
4. PW4 Ms. Babli (Plaintiff She tendered her evidence by way of
No. 2) affidavit Ex.PW4/A and relied upon
the following documents:
1. The document i.e. plaint
mentioned in the affidavit as Ex.X
is already Ex.PW3/X.
2. The document i.e. Site plan
mentioned in the affidavit as
PW4/1 is already exhibited as P-1.
3. The document i.e. Copy of
Khatoni consolidation dated
09.11.2005 mentioned in the
affidavit as Ex.PW4/2 is already
Ex.P-2.
4. The document i.e. Certified copy
of sale deed no. 9853 dated
10.09.2007 mentioned in the
affidavit as exhibited asCS DJ No. 1974 / 2016
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Ex.PW4/3 is already Ex.P-3.
5. The document i.e. Certified copy
of mutation order mentioned in
the affidavit as exhibited as
Ex.PW4/4 is already Ex.P-4.
6. The document i.e. Copy of
original Khatoni dated 10.09.2007
mentioned in the affidavit as
exhibited as Ex.PW4/5 is already
Ex.P-5.
7. The document i.e. Copy of
original Khatoni / Fard (Khasra
Girdwari) dated 10.09.2007
mentioned in the affidavit as
exhibited as Ex.PW4/6 is already
Ex.P-6.
8. The document i.e. Original GPA
dated 08.10.2013 mentioned in
the affidavit as exhibited as
Ex.PW4/7 is already Ex.PW1/1.
9. The document i.e. Certified copy
of Mutation Appeal
No.67/DC/NW/05 dated
30.11.2005 u/s 65 (B) DLR Act
mentioned in the affidavit as
exhibited as Ex.PW4/8 is alreadyCS DJ No. 1974 / 2016
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Ex.P-12.
10.The document i.e. Certified copy
of Mutation Appeal
No.104/DC/NW/11 dated
08.11.2011 u/s 65 (B) DLR Act
mentioned in the affidavit as
exhibited as Ex.PW4/9 is already
Ex.P-13.
11.The document i.e. Certified copy
of Revenue case dated 08.11.2011
u/s 83 of Delhi Land Reform Act
mentioned in the affidavit as
exhibited as Ex.PW4/10 is already
Ex.PW1/D-1/1.
12.The document i.e. Certified copy
of withdrawal order dated
24.06.2013 passed by Ms.
Sukhvinder Kaur, Ld. ADJ,
Rohini, Delhi mentioned in the
affidavit as exhibited as
Ex.PW4/11 is already Ex.P-15.
13.The document i.e. Certified copy
of suit No.113/2013 filed by the
defendant mentioned in the
affidavit as exhibited as
Ex.PW4/12 is already Ex.P-16.
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5. PW5 Ms. Sunita She tendered her evidence by way of
(Plaintiff No. 3) affidavit Ex.PW5/A and relied upon
the following documents:
1. The document i.e. plaint
mentioned in the affidavit as
Ex.X is already Ex.PW3/X.
2. The document i.e. Site plan
mentioned in the affidavit as
PW5/1 is already exhibited as P-
1.
3. The document i.e. Copy of
Khatoni consolidation dated
09.11.2005 mentioned in the
affidavit as Ex.PW5/2 is already
Ex.P-2.
4. The document i.e. Certified copy
of sale deed no. 9853 dated
10.09.2007 mentioned in the
affidavit as exhibited as
Ex.PW5/3 is already Ex.P-3.
5. The document i.e. Certified copy
of mutation order mentioned in
the affidavit as exhibited as
Ex.PW5/4 is already Ex.P-4.
6. The document i.e. Copy of
original Khatoni datedCS DJ No. 1974 / 2016
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10.09.2007 mentioned in the
affidavit as exhibited as
Ex.PW5/5 is already Ex.P-5.
7. The document i.e. Copy of
original Khatoni / Fard (Khasra
Girdwari) dated 10.09.2007
mentioned in the affidavit as
exhibited as Ex.PW5/6 is already
Ex.P-6.
8. The document i.e. Original GPA
dated 08.10.2013 mentioned in
the affidavit as exhibited as
Ex.PW5/7 is already Ex.PW1/1.
9. The document i.e. Certified copy
of Mutation Appeal
No.67/DC/NW/05 dated
30.11.2005 u/s 65 (B) DLR Act
mentioned in the affidavit as
exhibited as Ex.PW5/8 is already
Ex.P-12.
10.The document i.e. Certified copy
of Mutation Appeal
No.104/DC/NW/11 dated
08.11.2011 u/s 65 (B) DLR Act
mentioned in the affidavit as
exhibited as Ex.PW5/9 is already
Ex.P-13.
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11.The document i.e. Certified copy
of Revenue case dated
08.11.2011 u/s 83 of Delhi Land
Reform Act mentioned in the
affidavit as exhibited as
Ex.PW5/10 is already
Ex.PW1/D-1/1.
12.The document i.e. Certified copy
of withdrawal order dated
24.06.2013 passed by Ms.
Sukhvinder Kaur, Ld. ADJ,
Rohini, Delhi mentioned in the
affidavit as exhibited as
Ex.PW5/11 is already Ex.P-15.
13.The document i.e. Certified copy
of suit No.113/2013 filed by the
defendant mentioned in the
affidavit as exhibited as
Ex.PW5/12 is already Ex.P-16.
Plaintiff’s evidence was closed on 30.11.2024. DE on behalf of
defendant no. 1 was also closed vide order dt. 30.11.2024.
EVIDENCE ON BEHALF OF DEFENDANT NO. 2.
Sr. No. Name of witness Remarks/documents tendered
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1. DW1 Sumer He was a summoned witness, who signed
agreement dated 27.06.2006, which is
already Ex.DW1/1 on 17.07.2015. He
deposed that said agreement was executed
in his presence and he is witness to the
said agreement @ Rs. 40 lacs per acre.
The Sale deed dated 10.09.2007 already
Ex. P3 dated 17.07.2015 bears his
signatures at point A.
2. DW2 Sh. Suresh He tendered his evidence by way of
affidavit Ex. DW2/1 and relied upon the
following documents :
1. Written statement filed by the
defendant no. 2 is already Ex. X.
2. Copy of Agreement to Sell between
defendant no. 1 and defendant no. 2
dated 27.06.2006 is already
Ex. DW1/1.
3. Copy of police complaint dated
24.08.2007 lodged by defendant no.
2 against the defendant no.1 to PS
Bawana is already Ex. DW4.
4. Copy of police complaint dated
25.08.2013 lodged by defendant no.
2 against the defendant no.1 to PS
Bawana is already Ex.DW5.
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5. Copy of police complaint dated
31.08.2013 lodged by defendant no.
2 against the defendant no. 1 to
Commissioner of Police, Lt.
Governor NCT of Delhi and DCP
Outer District is already Ex. D-6
(colly).
6. Copy of RTI application dated
26.11.2023 from Lt. Governor
Secretariat is already Ex. D-7.
7. Certified copy of criminal complaint
No.22/B/13 dated 06.09.2013 filed
before Ld. MM, Rohini Court is
already Ex. D-8.
8. Copy of the Appeal
No.67/DC/NW/2005 Ld. Collector/
Deputy Commissioner, District
North is already Ex. PW1/8.
9. Certified copy of order dated
23.09.2014 is already Ex. D-9.
17. Defendant no. 2, Sh. Suresh Kumar was examined in chief and
cross-examined on behalf of defendant no. 1 and also on behalf of
plaintiffs on 18.01.2025. However, counsel for defendant no. 2 pressed
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his application u/o XVIII Rule 2 CPC for summoning of concerned
clerk from office of Sub-Registrar, Delhi regarding mode of execution
of sale deed dated 10.09.2007 and application for summoning defendant
no. 4 i.e. Tehsildar, Office of SDM, Naya Bans, Narela. Both the said
applications were dismissed on 18.01.2025 and evidence of defendant
no. 2 stood closed by order with liberty to defendant no. 2 to raise all
available pleas as per law during arguments.
18. This Court has carefully heard rival contentions of the counsel for
the parties, carefully pursued case record and after careful consideration
the findings are being returned.
ISSUE WISE SUBMISSIONS RAISED AND FINDINGS ARE AS
UNDER:
Issue No 1 is :
“Whether the suit of the plaintiff is entitled for
declaration regarding sale deed registered in book I,
Volume No. 1083 vide No. 9853 dt. 10.09.2007 as null
and void against the plaintiff as prayed in prayer clause
(I) of the plaint?OPP”
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ARGUMENTS BY COUNSEL FOR THE PARTIES:
First Argument
19. Ld. Counsel for the plaintiff has argued on this issue that the suit
property originally belonged to Sh. Surat Singh. After death of Sh. Surat
Singh, it was inherited by Sh. Kundan. After death of Sh. Kundan, it
was inherited by Sh. Bhor Singh. After Sh. Bhor Singh, the same was
inherited by defendant no. 2, Sh. Suresh, who is father of plaintiffs.
Plaintiffs along with their father Sh. Suresh are coparcener and therefore
Sh. Suresh could not have executed sale deed in favour of defendant no.
1 dated 10.09.2007. Reliance is placed upon case titled Rohit Chauhan
vs. Surender Singh decided by Hon’ble Supreme Court of India on
15.07.2015, wherein it has been held that coparcener property means
property consisting of ancestral property and coparcener would mean a
person who shares equally in inheritance in estate of common ancestor.
Case titled as Vineeta Sharma vs. Rakesh Sharma and Ors., decided by
Hon’ble Supreme Court of India on 11.08.2020, is also relied upon for
the same proposition. Per contra, to the judgment in Vineeta Sharma’s
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case, it is argued by Ld. Counsel for the plaintiff that for applicability of
this case, the coparcenary must exist on 09/09/2005. In the facts of
present case, the coparcenary has not been shown on 09/09/2005.
20. Reliance on behalf of plaintiff is further placed upon case titled as
Daryao Singh & Anr. Vs. Bhola & Ors., in Civil Regular Second Appeal
No. 792 of 1976 decided by Hon’ble Punjab & Haryana High Court on
07.08.1984 to contend that ancestral property could only be alienated
for legal necessity. defendant no. 2 did not have any legal necessity, so
sale by defendant no. 2, in favour of defendant no. 1 (vide sale deed
dated 10.09.2007) is null and void.
21. Per contra, counsel for the defendant no. 1 contends that pedigree
table is not disputed. However, the suit property which devolved upon
Sh. Suresh (defendant no. 2) was in nature of separate property.
Reliance is placed upon case titled as ‘ Commissioner of Wealth Tax,
Kanpur Etc. Vs. Chander Sen etc.’ decided by Hon’ble Supreme Court
of India on 16.07.1986 wherein it has been held that the property which
devolves on son, is separate property vis-a-vis the children of such son
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on whom the property devolves. It is further argued that PW1 Smt.
Sushila in her cross-examination dated 02.09.2024 admitted that she
was married with Sh. Suresh in the year 1985 and Sh. Bhor Singh had
already expired by then. It is argued that at the time of opening of
succession after death of Sh. Bhor Singh, the plaintiffs were not even in
existence, so they have no right to the suit property. Further reliance is
placed upon case titled as Bhanwar Singh Vs. Puran & Ors. in Civil
Appeal No. 1233 of 2008 decided by Hon’ble Supreme Court of India
on 12.02.2008 (citation: [2008] 2 SCR 775) to contend that once
property devolves u/s 8 of The Hindu Succession Act, 1956 it is
succeeded as tenants in common and not joint tenants by virtue of
Section 19 of the Hindu Succession Act, 1956 and thus Sh. Suresh had
succeeded the property as separate property. It is further argued that
question of legal necessity will not arise in the facts of present case as
the plaintiffs have no right in the suit property. Further reliance is placed
upon case titled as Uttam Vs. Saubhag Singh & Ors. decided by
Hon’ble Supreme Court of India on 02.03.2016 to contend that once
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property devolves u/s 8 of the Hindu Succession Act, 1956, the same
ceases to be joint family property.
Second Argument
22. It is further argued by counsel for the plaintiff that father of the
plaintiffs i.e. defendant no. 2 could not have sold the suit property to
defendant no. 1 in violation of Section 8 (2) (a) of Hindu Minority and
Guardianship Act, 1956 as the same requires previous permission from
the court. Per contra to this arguments, counsel for the defendant no. 1
argues that since plaintiffs did not have any right on the suit property,
Section 8(2)(a) of Hindu Minority and Guardianship Act, 1996 is
inapplicable.
Third Argument
23. It is further argued by counsel for plaintiff that Ex.P12 shows that
appeal has been filed by Sh. Suresh against his mother Smt. Chnadro
and Others. Same is pending before Deputy Commissioner, District
North-West, Kanjhawla, Delhi. It is argued that during pendency of this
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appeal against mutation dated 30.05.2000, the suit property could not
have been alienated by Sh. Suresh. Per contra to this arguments, counsel
for the defendant no. 1 argues that defendant no. 1 and plaintiff are not
parties in mutation proceedings. There was no stay on alienation and at
best, principle of lis pendens will apply. It is further argued that revenue
proceedings are only for fiscal purposes. The right, title and interest
over the suit property is to be decided by the civil court.
ARGUMENTS ON BEHALF OF THE COUNSEL FOR THE
DEFENDANT NO. 2.
24. It is argued by the counsel for the defendant no. 2 that he supports
the case of the plaintiff. It is argued that vide sale deed Ex.PW1/D-1/3
only unspecified share i.e. 41/336 was sold and no specific share was
sold. It is argued that in Para 2 of the plaint, share of Sh. Suresh is
mentioned as 11.45 Bighas. Four Bighas is approximately equal of 1
Acre. Share of Sh. Suresh translates to approximately 2.75 Acre. Rs.
40,00,000/- per acre was consideration amount as per Agreement to Sell
which was not paid to defendant no. 2. Per contra to this submission, it
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is argued by the counsel for the defendant no. 1 that share i.e. 41/336 is
specifically mentioned in the sale deed itself. It is further argued that in
para no.3 of the plaint itself, it is mentioned that Sh. Suresh inherited 11
bighas and 45 biswas vide Mutation dated 08.05.2000 and in the
pedigere table at page no. 9, the share of Sh. Suresh is mentioned as
11.45 bighas 45 biswas. It is further argued that Ex. DW1/1 was not
proved. Only photocopy was produced which has come in cross
examination of DW2 Sh Suresh a suggestion was put that this document
is fabricated. Rs.40 lacs per acre has been mentioned by hand and is not
counter signed and admitted by the parties. Further, there are no
signature of second party on first three pages of Ex. DW1/1. Further,
during cross-examination of DW-2, Sh. Suresh stated that photocopy of
agreement to sell dated 27.06.2006 was given by Sh. Lilu son of Sh.
Deepan to him who is mediator. Whereas, the mediator has been
mentioned as Ranbir and Sh. Sumer in plaint. Further, in the cross-
examination of PW-2 Sh. Suresh stated that he had not entered into
agreement to sell of 41/33 share with Sh. Suresh Chand Garg and
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hence, the witness is not credible. Further, DW-1 Sh. Samar in his cross-
examination dated 21.12.2024 by counsel for the plaintiff has stated that
he had finalized the sale deed as middle man which is contrary to case
of the defendant no. 2 that Sh. Lilu was middle man so DW-2 Sh.
Suresh is not credible witness.
Further, DW-1 Sh. Sumer in his cross-examination dated
21.12.2024 by counsel for the defendant no. 1 admitted that in
Ex. DW1/1 (advance receipt cum – agreement to sell and purchase) and
the Ex. D-2 (receipt does not bear his signatures in any capacity) which
shows that agreement to sell is fabricated.
Further, DW-2 Sh. Suresh in his cross-examination dated
18.01.2025 by the counsel for the plaintiff admitted that he had sold
share of his children. Again voluntarily stated that he has sold his own
share.
It is further argued by the counsel for the defendant no. 1 that
even if, case of defendant no. 2 is taken to be correct that agreement to
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sell was for Rs.40 lacs per acre even then, defendant no. 2 will not be
entitled to Rs.4.64 crore as claimed. Admittedly, Rs. 46 lacs has already
been paid by defendant no. 1 to the defendant no. 2 (para 4 of the
examination in chief affidavit of DW-2 Sh. Suresh). The share of
Sh. Suresh is 11 bighas 3 biswas and even @ Rs. 40 lacs per acre, he
will not be entitled to Rs. 4.64 crore as claimed (as in one acre, there are
4 bighas and 16 biswas approximately).
It is argued that therefore, complete sale consideration was paid
and agreement to sell is a suspicious document.
It is argued that DW-2 in his cross-examination dated 18.01.2025
had admitted that he had not taken any action before 2013. The
Agreement to Sell is dated 27.06.2006. The sale deed is dated
10.09.2007 and if DW-2 was defrauded, he ought to have immediately
action against the defendant no.1 which was not done. Thus, Agreement
to Sell dated 27.06.2006 is suspicious and defendant no.2 had received
entire sale consideration of Rs. 46 lacs.
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It is further argued on behalf of defendant no 2 that Sale Deed is
unclear and vague and therefore must be set aside.
It is further argued on behalf of defendant no. 2 that Sale Deed
was got executed in drunken condition. Full sale consideration was not
paid to the defendant no. 2 and thus, the sale deed be set aside. Criminal
proceedings were initiated against the defendant no. 1 qua this.
It is further argued on behalf of defendant no. 2 that Revenue
Appeal No.67/DC/North West /2005 filed by Sh. Suresh against his
mother Smt. Chandro was pending at the time of execution of Sale Deed
and thus, the sale by Sh. Suresh is subject to lis-pendens.
FINDING OF THE COURT ON ISSUE NO. 1
25. Tersely put a sale deed registered on 10-09-07 Ex P-3 was
executed by second defendant in favour of first defendant qua suit
property. Plaintiffs who are two sons and two daughters of Sh. Suresh
Kumar (second defendant) challenge this sale deed on the ground that
suit property was coparcenary so second defendant could not have
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alienated the same. It is also the case of plaintiff that second defendant
executed sale deed in state of intoxication.
26. On the other hand the main contesting first defendant (vendee of
suit property) opposes the plea of suit property being coparcenary. It is
case of first defendant that second defendant was in fit state at time of
execution of sale deed registered on 10/09/2007 Ex. P-3.
27. Before dealing with respective contentions raised the law
applicable qua coparcenary property is being stated, Reliance for the
statement of law below is placed upon case titled as Sunny (Minor) v.
Raj Singh decided by Hon’ble Delhi High Court in C.S.(O.S.) No. 431
of 2006 on 17.11.2015.
LAW APPLICABLE
TRADITIONAL HINDU LAW (i.e. LAW PRIOR TO 1956 (YEAR
WHEN HINDU SUCCESSION ACT 1956 WAS PASSED)
28. When a person ‘A’ inherited property from his father or fathers
father’s father or father’s father’s father then the property in his hand
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was not to be treated as a self-acquired property but was to be treated as
an HUF property in which his son, son’s son and son’s son’s son had a
right equal to ‘A’.
LEGAL POSITION AFTER PASSING OF THE HINDU SUCCESSION ACT, 1956,
GENERAL STATEMENT OF LAW (AFTER PASSING OF THE
HINDU SUCCESSION ACT, 1956,)
29. This traditional position has undergone a change and if a person
after 1956 inherits a property from his paternal ancestors, the said
property is not an H.U.F. property in his hands. The property is to be
taken as a self-acquired property of the person who inherits the same.
TWO EXCEPTIONS TO THE ABOVE GENERAL STATEMENT OF
LAW
FIRST EXCEPTION TO THE PROPERTY IN THE HANDS OF A
PERSON BEING NOT SELF ACQUIRED
30. Property inherited by such a person say ‘A’ will be Hindu
Undivided Family if Hindu Undivided Family and its properties were
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existing even prior to the passing of the Hindu Succession Act, 1956.
Further the Hindu Undivided Family continued even after passing of the
SECOND EXCEPTION TO THE PROPERTY IN THE HANDS OF A
PERSON BEING NOT SELF ACQUIRED
31. 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/H.U.F. properties.
REQUIREMENT OF PROOF
32. Facts as to how the properties are Hindu Undivided Family
properties is required to be stated as a positive statement in the
plaint .Uttering a mantra of the properties inherited being ‘ancestral’
properties and thus the existence of HUF, does not suffice in law.
33. Averments in the plaint as to when Hindu Undivided Family was
created i.e. whether it existed even before 1956 or it was created for the
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first time after 1956 by throwing the property/properties into a common
hotchpotch are required.
LACK OF NECESSARY AVERMENTS IN PLAINT
34. A reference to the plaint shows that is nowhere pleaded in the
plaint that as to the specific date/period/month/year of creation of an
Hindu Undivided Family before 1956 and it’s continuance after 1956 or
throwing properties into common hotchpotch. Only a self-serving
statement has been made of properties being ‘ancestral’ in hand of Sh.
Suresh as he inherited the same from his father late Sh. Bhor Singh who
died in 1962, does not in law mean that the ancestral property is an HUF
property.
APPLYING THE STATEMENT OF LAW ON COPARCENARY
PROPERTY TO FACTS OF PRESENT CASE
35. Onus of important issues such as issue nos.1 cannot be discharged
by oral self-serving averments in deposition.
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36. An Hindu Undivided Family, could only have been created by
showing creation of HUF after 1956 by throwing property/properties in
common hotchpotch or an HUF existing prior to 1956 and continuing
after 1956. Once there is no pleading or evidence on these aspects, it
cannot be held that any HUF existed or was created prior to 1956 and is
continuing after 1956. Thus plaintiffs have miserably failed to discharge
onus upon them.
37. Plaintiff has to stand on his own legs which he failed to do.
(Reliance is placed upon case titled as State of M.P. v. Nomi Singh,
reported in (2015) 14 S.C.C. 450)
FINDINGS ON SUBMISSIONS RAISED
First argument dealt with:
38. The submission on behalf of plaintiff that the suit property
originally belonged to Sh. Surat Singh. After death of Sh. Surat Singh, it
was inherited by Sh. Kundan. After death of Sh. Kundan, it was
inherited by Sh. Bhor Singh. After death of Sh. Bhor Singh, the same
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was inherited by Sh. Suresh, who is father of plaintiffs. Plaintiffs along
with their father Sh. Suresh are coparceners and therefore Sh. Suresh
could not have executed sale deed registered on 10/09/2007 Ex P-3 in
favour of defendant No. 1 dated 10.09.2007, is without merits. These
submission are rejected as the suit property which devolved upon Sh.
Suresh (defendant No.2) from his father late Sh. Bhor Singh who died in
1962 (after 1956 when Hindu Succession Act was in operation) was in
nature of separate property. Reliance is rightly placed by counsel for
first defendant upon case titled as ‘Commissioner of Wealth Tax,
Kanpur Etc. Vs. Chander Sen etc.’ decided by Hon’ble Supreme Court
of India on 16.07.1986 wherein it has been held that the property which
devolves on son, is separate property vis-a-vis the children of such son
on whom the property devolves. Further reasons for rejection of this
submissions of plaintiffs are also detailed in paragraphs to follow.
39. Reliance placed on behalf of plaintiff upon case titled Rohit
Chauhan vs. Surender Singh decided by Hon’ble Supreme Court of
India on 15.07.2015, wherein it has been held that coparcenary property
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means property consisting of ancestral property and coparcenary would
mean a person who shares equally in inheritance in estate of common
ancestor, is misplaced. Their is no dispute with the proposition of law
laid down in this case however in case titled as Uttam vs Saubhag Singh
& Ors decided by Hon’ble Supreme Court of India on 2 March, 2016 it
was held:
“…20. Some other judgments were cited before us
for the proposition that joint family property
continues as such even with a sole surviving
coparcener, and if a son is born to such coparcener
thereafter, the joint family property continues as
such, there being no hiatus merely by virtue of the
fact there is a sole surviving coparcener. Dharma
Shamrao Agalawe v. Pandurang Miragu
Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal
Chand, (2006) 8 SCC 581, and Rohit Chauhan v.
Surinder Singh (2013) 9 SCC 419, were cited for
this purpose. None of these judgments would take
the appellant any further in view of the fact that in
none of them is there any consideration of theCS DJ No. 1974 / 2016
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effect of Sections 4, 8 and 19 of the Hindu
Succession Act. ……”
40. Reliance on case titled as Vineeta Sharma vs. Rakesh Sharma and
Ors., decided by Hon’ble Supreme Court of India on 11.08.2020 , by
counsel for the plaintiff also does not help the case of plaintiff. Their is
no dispute with the proposition of law laid down in this case by Hon’ble
Supreme Court but for applicability of this case, the coparcenary must
exist on 09/09/2005. In the facts of present case, the coparcenary has not
been shown to have existed on 09/09/2005.
41. Reliance on behalf of plaintiff upon case titled as Daryao Singh &
Anr. Vs. Bhola & Ors., in Civil Regular Second Appeal No. 792 of 1976
decided by Hon’ble Punjab & Haryana High Court on 07.08.1984 to
contend that ancestral property could only be alienated for legal
necessity. defendant no. 2 did not have any legal necessity, so sale by
defendant no. 2, in favour of defendant no. 1 (vide sale deed registered
on 10/09/2007 Ex P-3) is null and void also is misplaced. Their is no
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dispute with the proposition of law laid down in this case. However this
case does not aid case of plaintiffs as the suit property which devolved
upon Sh. Suresh (defendant no. 2) from his father late Sh. Bhor Singh
who died in 1962 (after 1956 when Hindu Succession Act was in
operation) was in nature of separate property. Reliance is rightly placed
by counsel for first defendant upon case titled as ‘Commissioner of
Wealth Tax, Kanpur Etc. Vs. Chander Sen etc.’ decided by Hon’ble
Supreme Court of India on 16.07.1986 wherein it has been held that the
property which devolves on son, is separate property vis-a-vis the
children of such son on whom the property devolves.
42. Perusal of record shows that PW1 Smt. Sushila in her cross-
examination dated 02.09.2024 admitted that she was married with Sh.
Suresh in the year 1985 and Sh. Bhor Singh had already expired by
then. Thus at the time of opening of succession after death of Sh. Bhor
Singh, the plaintiffs were not even in existence, so they have no right to
the suit property. Reliance is rightly placed on behalf of first defendant
upon case titled as Uttam vs Saubhag Singh & Ors decided on 2 March,
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2016 by Hon’ble Supreme Court of India for this proposition wherein it
was held as under:
“…21. Applying the law to the facts of this
case, it is clear that on the death of Jagannath
Singh in 1973, the joint family property which
was ancestral property in the hands of Jagannath
Singh and the other coparceners, devolved by
succession under Section 8 of the Act. This being
the case, the ancestral property ceased to be joint
family property on the date of death of Jagannath
Singh, and the other coparceners and his widow
held the property as tenants in common and not as
joint tenants. This being the case, on the date of
the birth of the appellant in 1977 the said ancestral
property, not being joint family property, the suit
for partition of such property would not be
maintainable. The appeal is consequently
dismissed with no order as to costs. ….”
43. Further reliance is rightly placed on behalf of first defendant upon
case titled as Bhanwar Singh Vs. Puran & Ors. in Civil Appeal No. 1233
of 2008 decided by Hon’ble Supreme Court of India on 12.02.2008
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(citation: [2008] 2 SCR 775) to contend that once property devolves u/s
8 of The Hindu Succession Act, 1956 it is succeeded as tenants in
common and not joint tenants by virtue of Section 19 of the Hindu
Succession Act, 1956 and thus Sh. Suresh had succeeded the property as
separate property.
44. Perusal of record shows that the question of legal necessity will
not arise in the facts of present case as the plaintiffs have no right in the
suit property.
45. Further reliance on behalf of first defendant is rightly placed upon
case titled as Uttam Vs. Saubhag Singh & Ors decided by Hon’ble
Supreme Court of India on 02.03.2016 to contend that once property
devolves u/s 8 of the Hindu Succession Act, 1956, the same ceases to be
joint family property.
46. To sum up, plaintiffs failed to prove coparcenary nature of suit
property.
Second argument dealt with
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47. Submission raised on behalf of plaintiff that father of the
plaintiffs i.e. defendant no. 2 could not have sold the suit property to
defendant No. 1 in violation of Section 8 (2) (a) of Hindu Minority and
Guardianship Act, 1956 as the same requires previous permission from
the court, is without merits. This submission is rejected. Since plaintiffs
did not have any right over the suit property, Section 8(2)(a) of Hindu
Minority and Guardianship Act, 1996 is inapplicable and plaintiffs
cannot seek any aid from the same.
Third argument dealt with
48. Submission raised on behalf of plaintiff that Ex.P12 shows that
appeal has been filed by Sh. Suresh against his mother Smt. Chnadro
and others. Same is pending before Deputy Commissioner, district
North-West, Kanjhawla, Delhi. Submission that during pendency of this
appeal against mutation dt. 30.05.2000, the suit property could not have
been alienated by Sh. Suresh, is without merits. This submission is
rejected. Perusal of record shows plaintiffs or first defendant are not
parties in mutation proceedings. No stay on alienation has been shown
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from record. At best, principle of lis pendens will apply but sale cannot
be set aside on this ground. Further revenue proceedings are only for
fiscal purposes. The right, title and interest over the suit property is to
be decided by the civil court.
FINDINGS UPON ARGUMENTS RAISED ON BEHALF OF THE
DEFENDANT NO. 2.
49. Submission raised on behalf of defendant no. 2 that vide sale deed
registered on 10/09/2007 Ex P-3 only unspecified share i.e. 41/336 was
sold and no specific share was sold. Further submission that in Para 2 of
the plaint, share of Sh. Suresh is mentioned as 11.45 Bighas. Four
Bighas is approximately equal of 1 Acre. Share of Sh. Suresh translates
to approximately 2.75 Acre. Rs. 40,00,000/- per acre was consideration
amount as per Agreement to Sell which was not paid to defendant no. 2,
so suit be decreed is without merits. These submissions are rejected for
reasons in paragraphs to follow.
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AGREED CONSIDERATION HAS DULY PASSED TO SECOND
DEFENDANT
50. Even if, case of defendant no.2 is taken to be correct that
agreement to sell was for Rs. 40 lacs per acre even then, defendant no.2
will not be entitled to Rs. 4.64 crore as claimed. Admittedly, Rs. 46 lacs
has already been paid by defendant no.1 to the defendant no.2 (para 4 of
the examination in chief affidavit of DW-2 Sh. Suresh). The share of
Sh. Suresh is 11 bighas 3 biswas and even @ Rs. 40 lacs per acre, he
will not be entitled to Rs.4.64 crore as claimed (as in one acre, there are
4 bighas and 16 biswas approximately).
51. Perusal of record shows that share i.e. 41/336 is specifically
mentioned in the sale deed registered on 10/09/2007 Ex P-3 itself. In
para no.3 of the plaint itself, it is mentioned that Sh. Suresh inherited 11
bighas and 45 biswas vide Mutation dated 08.05.2000 and in the
pedigree table , the share of Sh. Suresh is mentioned as 11.45 bighas 45
biswas.
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ALLEGED AGREEMENT TO SELL EX.DW1/1DATED 27.06.2006 IS
NOT PROVED
52. Ex.DW1/1 alleged agreement to sell is not proved. Only
photocopy was produced which has come in cross examination of DW2
Sh. Suresh. A suggestion was put that this document is fabricated. Rs.
40 lacs per acre has been mentioned by hand (not typed). Same is not
counter signed and admitted by the parties. Further, there are no
signature of second party on first three pages of Ex. DW1/1.
APPRECIATION OF ORAL EVIDENCE ON RECORD
53. During cross-examination of DW-2 Sh. Suresh stated that
photocopy of agreement to sell dated 27.06.2006 was given by Sh. Lilu
son of Sh. Deepan to him who is mediator. Whereas, the mediator/local
property dealers has been mentioned as Sh. Ranbir and Sh. Sumer in
plaint and not Sh. Lilu.
54. Further, in the cross-examination DW-2 Sh. Suresh stated that he
had not entered into agreement to sell of 41/33 share with Sh. Suresh
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Chand Garg. DW-1 Sh. Sumar in his cross-examination dated
21.12.2024 by counsel for the plaintiff has stated that he had finalized
the sale deed as middle man which is contrary to case of the defendant
no. 2 that Sh. Lilu was middle man.
55. Perusal of record shows that DW-2 Sh. Suresh in his cross-
examination dated 18.01.2025 by the counsel for the plaintiff admitted
that he had sold share of his children. Again said voluntarily he stated
that he has sold his own share.
56. Perusal of record shows that DW-2 in his cross-examination dated
18.01.2025 had admitted that he had not taken any action before 2013.
The Agreement to Sell is dated 27.06.2006. The sale deed Ex P-3 is
dated 10.09.2007 and if DW-2 was defrauded, he ought to have
immediately action against the defendant no.1 which was not done.
In totality of circumstances DW-2 Sh. Suresh is not
credible witness. His evidence is against natural human conduct in
natural course of events
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57. DW-1 Sh. Sumer is summoned witness in examination-in-chief
he claims to have signed agreement to sell dated 27/06/06. in his cross-
examination dated 21.12.2024 by counsel for the defendant no. 1
admitted that in Ex. DW1/1 (advance receipt cum – agreement to sell
and purchase) and the Ex. D-2 (receipt does not bear his signatures in
any capacity). Agreement to sell is not proved. This witness is not
credible.
58. In totality of circumstances, complete sale consideration was paid
by first defendant. Alleged Agreement to sell relied by second defendant
is a suspicious document and has not been proved as per law.
RIGHTS AND LIABILITIES OF VENDOR AND VENDEE.
59. The Section 55 of the Transfer Property Act also deals with rights
and liabilities of vendor and vendee. The relevant section has
reproduced as below:
“55. Rights and liabilities of buyer and seller.–In the
absence of a contract to the contrary, the buyer and the
seller of immovable property respectively are subject toCS DJ No. 1974 / 2016
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the liabilities, and have the rights, mentioned in the
rules next following, or such of them as are applicable
to the property sold:
(1) The seller is bound–
(a) to disclose to the buyer any material defect in the
property or in the seller’s title thereto of which the
seller is, and the buyer is not, aware, and which the
buyer could not with ordinary care discover;
(b)……
An omission to make such disclosures as are
mentioned in this section, paragraph (1), clause (a), and
paragraph (5), clause (a), is fraudulent”
60. Perusal of above stated section reveals that it is the liability of the
seller to declare material defect in his title to the purchaser. The
plaintiffs or second defendant have not produced any document or any
evidence to show that he has intimated the first defendant about the
material defect in his title to the Suit Property. On the contrary, the
second defendant had assured first defendant that there are no
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encumbrances or disputes over the above said property as is averred in
the sale deed itself.(para 9 at internal page 19 of sale deed Ex p-2
registered on 10/09/2007).
PRESUMPTION ATTACHED TO REGISTERED SALE DEED HAS
NOT BEEN REBUTTED
61. Submission raised on behalf of defendant no. 2 that the Sale Deed
is unclear and vague and therefore must be set aside it without merits.
This submission is rejected. Sale Deed registered on 10/09/2007 Ex. P-3
is clear, specific and as per law.
62. Submission raised on behalf of defendant no. 2 that sale deed
registered on 10/09/2007 Ex P-3 was got executed in drunken condition.
Full sale consideration was not paid to the defendant no. 2 and thus, the
sale deed be set aside. Further submission that criminal proceedings
were initiated against the defendant no. 1 qua this, so sale deed be set
aside is without merits. These submissions are rejected particulars of
fraud have not been detailed as required u/o VI Rule 4 CPC. (Reliance
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is placed upon case titled as Electrosteel Castings Limited v. UV Asset
Reconstruction Company Limited and others reported in (2022) 2 SCC
573). Sale deed was not challenged by second defendant immediately.
Findings that alleged agreement to sell is not proved have already been
returned in paras above.
63. Further there is a presumption in law that a registered instrument
is validly executed and is prima facie valid in law. Same is presumed to
be genuine as presumption has not been rebutted. Reliance in this regard
is placed on case titled as Prem Singh and Ors. Vs. Birbal and Ors.
Reported as (2006) 5 SCC 353 wherein it was held as follows:
“..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…”
64. Submission raised on behalf of defendant no. 2 that Revenue
Appeal No.67/DC/NorthWest/2005(ExP-12) filed by Sh. Suresh against
his mother Smt. Chandro was pending at the time of execution of sale
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deed registered on registered on 10/09/2007 Ex. P-3 and sale could not
have been effected is without basis. The submission is rejected. Perusal
of record shows plaintiffs or first defendant are not parties in mutation
proceedings. No stay on alienation has been shown from record.
Principle of lis pendens will apply as per law but sale cannot be set
aside on this ground. Further revenue proceedings are only for fiscal
purposes. The right, title and interest over the suit property is to be
decided by the civil court.
TO SUM UP
65. Plaintiff did not prove that suit property is coparcenary. Fact that
second defendant executed sale deed in drunk condition as alleged was
not proved. Sale deed registered on 10/092007, Ex P-3 is perfectly valid
document and has not been discredited.
66. Issue no. 1 is decided against the plaintiffs.
ISSUE No. 2 IS :
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“Whether the plaintiff is entitled for decree of partition in
land admeasuring 11 Bigha 45 Biswa in farad/Khewat
No. 22 in Kh. No. 45/6 (4-0), 46/9 (4-10) in village
Sultanpur Dabas, Delhi as prayed in prayer clause (ii) of
the plaint?OPP”
67. Ld. Counsel for the parties adopt the submissions made on issue
No. 1 for this issue.
68. It is additionally submitted by Ld. Counsel for the defendant no. 1
that Form P-4 which is Khasra Girdwari for the period 27/09/2012 to
04/03/2013 shows that defendant no. 1 is in possession and the crop
sarso is mentioned in the crops column. It is further argued that the
report of mutation by the patwari Ex. P5 at Page 50 and translated copy
of the same at page 51 of the Paper Book of the plaintiff’s documents
shows that Neelkanth Promoters i.e. defendant no. 1 has mutation of
41/336 share in their favour as purchased from defendant no. 2 i.e. Sh.
Suresh S/o Bhor Singh. Per contra, Ld. Counsel for defendant no. 2
states that Hon’ble High Court of Delhi in order dated 16/07/2014, it is
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mentioned that Ld. Counsel for defendant no. 1 has made a statement
that possession is not of defendant no. 1.
FINDING OF THE COURT ON ISSUE NO. 2
69. Perusal of record shows that Form P-4 which is Khasra Girdwari
for the period 27/09/2012 to 04/03/2013.Same shows that defendant no.
1 is in possession and the crop “sarso” is mentioned in the crops
column. The report of mutation by the patwari Ex. P5 at Page 50 and
translated copy of the same at page 51 of the Paper Book of the
plaintiff’s documents shows that Neelkanth Promoters i.e. defendant no.
1 has mutation of 41/336 share in their favour as purchased from
defendant no. 2 i.e. Sh. Suresh S/o Bhor Singh. Further para 2 at internal
page 9 of sale deed Ex p-2 registered on 10/09/2007 also shows
possession of vendee. Thus, plaintiffs have failed to prove their
possession over suit property.
70. Submission on behalf of defendant no. 2 that in order dated
16/07/2014, by Hon’ble High Court of Delhi it is mentioned that Ld.
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Counsel for defendant no. 1 has made a statement that possession is not
of defendant no. 1 is factually correct. However in view of the above
documentary evidence on record that statement by the then counsel for
first defendant pales into insignificance. Possession of first defendant
over suit property is duly proved.
71. In view of the findings on issue no 1 this issue is decided against
plaintiffs as decree of partition in land cannot be granted in absence of
any right, title. interest or possession of plaintiffs over the suit property.
72. Issue no. 2 is decided against the plaintiffs.
ISSUE NO 3 IS :
“Whether the plaintiff is entitled for permanent injunction
as prayed in prayer clause (iii) of the plaint? OPP”
73. Ld. counsel for the parties adopt the submissions made on issue
No. 1 and 2 for this issue.
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FINDING OF THE COURT ON ISSUE NO. 3
74. In view of the findings on issue no 1 and 2 this issue is decided
against plaintiffs as decree of for permanent injunction as prayed in
prayer clause (iii) of the plaint (i.e. restraining creation of third party
interest against first defendant) cannot be granted in absence of any
right, title. interest or possession of plaintiffs over the suit property.
75. Issue no 3 is decided against the plaintiff.
ISSUE NO. 4 IS :
“Whether the present suit is barred by law of limitation?OPD1”
76. Ld. Counsel for the defendant no. 1 has argued on this issue that
he does not press this issue.
77. Per contra, Ld. Counsel for the plaintiff has argued on this issue
that Section 7 of the Limitation Act comes to benefit of the plaintiff.
The youngest plaintiff is plaintiff no. 4 Master Ravi who was born on
19/12/1997 and thus, the plaint is within limitation.
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FINDING OF THE COURT ON ISSUE NO. 4
78. Section 7 of the Limitation Act provided that where one of several
persons jointly entitled to institute a suit is under any such disability,
when a discharge can be given without the concurrence of such person,
time will run against them all; but, where no such discharge can be
given, time will not run as against any of them until one of them
becomes capable of giving such discharge without the concurrence of
the others or until the disability has ceased. The suit filed on 1/11/13 is
thus within limitation as plaintiff no. 4 Master Ravi who was born on
19/12/1997 was just a minor about 16 years as on date of plaint.
79. Issue no. 4 is decided against the first defendant.
ISSUE NO. 5 IS :
“Whether the present suit has been affixed with
appropriate court fees?OPD1”
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80. Ld. Counsel for the defendant no. 1 has argued on this issue that
Section 7 (iv) of the Court Fees Act, 1870 provides that for declaratory
decree and consequential relief, plaintiff shall state the amount at which
he values the relief sought. The valuation has not been specified. It is
argued that since possession is sought ad valoram Court fees on the
market value of the suit property att he time of the filing of suit is
relevant and appropriate Court fees has not been paid.
81. Per Contra, Ld. Counsel for plaintiff submits that Court fees of
Rs. 48,000/- has been paid on the consideration amount mentioned in
the Sale Deed registered on 10/09/2007.
82. Reliance is placed upon case titled as Neelavathi And Ors. Vs. M.
Natarajan And Ors. on 30 November, 1979 1980 AIR 691, 1980 SCR
(2) 307 to contend that Court fees is only to be paid on share of the
plaintiff.
FINDING OF THE COURT ON ISSUE NO. 5
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83. Submission on behalf of defendant no. 1 that Section 7 (iv) of the
Court Fees Act, 1870 provides that for declaratory decree and
consequential relief and that plaintiff shall state the amount at which he
values the relief sought is legally correct.
84. Further submission on behalf of defendant no. 1 that since
possession is sought ad valorem Court fees on the market value of the
suit property at he time of the filing of suit is relevant and appropriate
Court fees has not been paid, is also legally correct. However defendant
no. 1 did not prove market value of the suit property at the time of the
filing of suit and thus onus was not discharged.
85. Perusal of record shows that Court fees of Rs. 48,000/- has been
paid on the consideration amount mentioned in the Sale Deed registered
on 10/09/2007.
86. Reliance by counsel for plaintiff upon case titled as Neelavathi
And Ors. Vs. M. Natarajan And Ors. on 30 November, 1979 by Hon’ble
Supreme Court of India reported as 1980 AIR 691, 1980 SCR (2) 307 to
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contend that Court fees is only to be paid on share of the plaintiff is
misplaced. Their is no dispute with the proposition of law laid down in
this case however plaintiffs could not prove joint possession and thus
this judgment is inapplicable to case of plaintiffs.
87. However, since defendant no. 1 did not prove market value of the
suit property at he time of the filing of suit onus was not discharged.
88. Issue no 5 is decided against the first defendant.
ISSUE NO 6 IS :
“Whether the present suit is barred by Section 185 of
Delhi Land Reforms Act?OPD1″
89. Ld. counsel for the defendant no. 1 has argued on this issue that
entry 28 of Schedule I of Delhi Land Reforms Act, 1954 provides for
jurisdiction of Revenue Assistant for declaratory suit.
90. Per contra, Learned counsel for the plaintiff has argued on this
issue that in the suit Sale Deed registered on 10/09/2007 is under
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challenge. Permanent injunction is also prayed. Partition is also prayed
and thus revenue assistant cannot have jurisdiction over the subject
matter of this suit.
FINDING OF THE COURT ON ISSUE NO. 6.
91. Perusal of record shows that in the suit Sale Deed registered on
10/09/2007 is under challenge. Permanent injunction is also prayed.
Partition is also prayed and thus revenue assistant cannot have
jurisdiction over the subject matter of this suit.
92. Issue no. 6 is decided against the first defendant.
ISSUE NO. 7 IS :
“Whether the present suit is not maintainable in view of
provisions of Section 10 & 11 CPC?OPD1″
93. Ld. Counsel for the plaintiff has argued on this issue that this
issue is not pressed for.
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FINDING OF THE COURT ON ISSUE NO. 7
94. Since this issue was not pressed the same is decided against the
first defendants on whom onus lay.
95. Issue no. 7 is decided against the first defendant.
ISSUE NO. 8 IS:
“Whether the present suit is not maintainable in view of
non-joinder of necessary party?OPD1”
96. Ld. Counsel for the plaintiff has argued on this issue that this
issue is not pressed.
FINDING OF THE COURT ON ISSUE NO. 8
97. Since this issue was not pressed the same is decided against the
first defendants on whom onus lay.
98. Issue no 8 is decided against the first defendant.
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ISSUE NO. 9 IS :
“Whether in the present suit there is collusion between
the defendant No. 2 and plaintiff and hence not
maintainable?OPD1”
99. Ld. Counsel for the parties adopt their arguments on Issue No. 1.
FINDING OF THE COURT ON ISSUE NO. 9
100. Perusal of the record shows that in written statement second
defendant supports case of plaintiff. Admittedly second defendant is
father of plaintiffs. Main contesting defendant is the first defendant.
Collusion between plaintiff and second defendant is thus inferred and
apparent. However suit cannot be said to be not maintainable on this
ground alone.
101. Issue no. 8 is decided against the first defendant.
RELIEF
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102. In view of the findings on issue no. 1 to 3, the suit of the plaintiff
is dismissed with costs. Decree sheet be prepared accordingly after
filing of deficient court fee, if any. File be consigned to Record-Room.
Digitally signed
by VIKRAM
VIKRAM BALI
BALI Date:
2025.07.16
16:49:08 +0530(Vikram Bali)
Addl. District Judge-02, North
Announced in the open Court. Rohini Court Complex, Rohini
(Order contains 63 pages) Delhi/16/07/2025CS DJ No. 1974 / 2016
Praveen & Ors. Vs. Neelkanth Promotors Pvt. Ltd. & Ors. Page No. 63 of 63
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