Delhi District Court
Piyush And Ors vs Manisha Gupta And Ors on 7 May, 2026
IN THE COURT OF VIKAS GARG, DISTRICT
JUDGE-05 (EAST),
KARKARDOOMA COURTS, DELHI.
CS No. 2984/2016
CNR No. DLET01-008598-2016
1. Shri Piyush (Since Deceased)
S/o Late Shri M.S. Gupta
R/o A-9, Neeti Bagh
New Delhi-110049.
Through his LRs
1. Ms. Deepali D/o Sh. Piyush
R/o M-11, Chandralok Colony Aliganj
Lucknow 226024.
2. Mukul S/o Sh. Piyush
R/o A9 Neeti Bagh
New Delhi-110049.
3. Anshu W/o Sh. Piyush
R/o WZ 68 Meenakshi Garden New Delhi-18
(Presently at A9 Neeti Bagh New Delhi-110049).
2. Smt. Prabha Devi Gupta (Since Deceased)
W/o Late Sh. M.S. Gupta
R/o A-9, Neeti Bagh
New Delhi-110049.
Through her LR
Mukul S/o Sh. Piyush
R/o A9 Neeti Bagh
New Delhi-110049.
.......Plaintiffs
Versus
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Date:
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1. Smt. Manisha Gupta
W/o Shri Naresh Kumar Gupta
R/o B-8 Shyamla Hills Bhopal
Madhya Pradesh.
2. Mr. Neeraj Shekhar
S/o Shri Chandra Shekhar
R/o 205-D, Pocket-A
Mayur Vihar, Phase-II
Delhi-110091.
3. Smt. Mridul Agarwal
W/o Shri Rajesh Agarwal
R/o T-1/1501, Supreme Towers, Sector 99, Noida 201303.
......Defendants
Date of Institution Suit : 05.09.2001
Date of Final Arguments : 19.03.2026
Date of Decision : 07.05.2026
Final Decision of the suit : Dismissed
SUIT UNDER RECOVERY OF LICENSE FEES, BILLS AND
ELECTRIC AND MAINTENANCE AND PENALTY AND
PENDENTALITE MESNE PROFIT AND DECLARATION
JUDGMENT
1. This judgment pertains to the suit instituted for recovery of
license fees, bills and electric and maintenance and penalty and
pendentalite mesne profit and declaration.
2. CASE OF THE PLAINTIFFS AS PER PLAINT :-
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Briefly, the essential facts and averments required for a fair
adjudication of the present suit, as presented in the plaint, are as
follows:
The plaintiffs state that defendant No.1 and defendant No.3
are sisters of plaintiff No.1 and daughters of plaintiff No.2.
Defendant No.1 is permanently residing at D-103/4, Shivaji Nagar,
Bhopal-462016 as her husband has been working and posted in the
State of Madhya Pradesh for more than 20 years, while defendant
No.3 is residing at C-109, Sahibabad, Ghaziabad, U.P. Defendant
No.2 had been inducted as a licensee under an agreement dated
25.12.1999 and vacated the premises on 28.02.2001. The defendants
are stated to be liable for approximately Rs.45,05,5000/-.
It is further stated that Late Sh. M.S. Gupta, father of plaintiff No.1
and husband of plaintiff No.2 Smt. Prabha Devi Gupta, along with
plaintiff No.1 and plaintiff No.2, residents of A-9, Neeti Bagh, were
interested in purchasing a flat in Supreme Co-operative Group
Housing Society around the year 1980 to be allotted at Patparganj,
Mayur Vihar for the benefit of plaintiff No.2. The flat could be
allotted only to a person enrolled as an advocate and not owning
residential property in Delhi. At the time of initial membership and
payment, plaintiff Nos.1 and 2 were studying LL.B. and were not
enrolled as advocates. As the society was meant for advocates, Late
Sh. M.S. Gupta along with plaintiff Nos.1 and 2 decided to obtain
the flat in the name of defendant No.1, who was unmarried at the
relevant time and enrolled as an advocate with the Bar Council of
Delhi, with the understanding that she would later transfer the flat in
favour of plaintiff No.1 and/or plaintiff No.2. The plaintiffs assert
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that plaintiff No.2 purchased Flat No.214, Supreme Enclave, with
her own hard-earned money and life savings for her old age and
remained in settled possession from the beginning though the flat
stood in the name of defendant No.1. It is alleged that as plaintiff
No.2 has now become old and infirm, defendants No.1 to 3 and their
agents have conspired to occupy the property and deprive the
plaintiffs of it. The entire consideration for the flat is stated to have
been paid by plaintiff No.2 from her bank accounts.
According to the plaintiffs, plaintiff Nos.1 and 2 had been in actual,
exclusive and physical possession of Flat No.214, Supreme Enclave,
Mayur Vihar, Delhi even prior to 03.03.2001 and for more than 12
years since soon after construction, when possession was taken
though no formal possession letter had been issued by the society at
that time.
It is further averred that the entire amount towards construction cost,
land share, membership fee, ground rent, maintenance and other
miscellaneous dues was paid by plaintiff Nos.1 and 2 through their
bank accounts. The plaintiffs assert that all payments relating to
purchase, maintenance, ground rent and other expenses were made
by them and they rely upon the relevant bank documents while
reserving the right to produce additional proofs. It is stated that the
father of plaintiff No.1 was a practising advocate and member of the
Supreme Court Bar Association, and defendant No.1, being an
unmarried daughter, was enrolled as a member of the Supreme Co-
operative Group Housing Society. After her marriage with Sh. N.K.
Gupta at Khurai, Madhya Pradesh, whose services were
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transferable, defendant No.1 had to reside with him and was not
employed. All payments towards the flat including construction and
land cost were allegedly made by plaintiff No.2 from her own bank
account for her benefit, with plaintiff Nos.1 and 2 contributing
towards the flat and remaining in settled possession from the
beginning.
It is also stated that plaintiff No.2 along with plaintiff No.1 and Late
Sh. M.S. Gupta had from time to time licensed or leased the flat to
various persons whenever required, while legal possession
continued with the plaintiffs until their alleged illegal dispossession
by the defendants and their agents on 03.03.2001.
The plaintiffs further state that in March 1995 plaintiff No.2,
plaintiff No.1 and Late Sh. M.S. Gupta orally authorised plaintiff
No.1 to license the flat for eleven months to a licensee. Although a
document captioned as a proposed lease deed was signed by N.K.P.
Sinha of Patna and plaintiff No.2, no formal lease deed was
executed. Possession was allegedly returned to the plaintiffs on
31.03.1998 and Sh. N.K.P. Sinha thereafter held possession as a
tenant under the plaintiffs and paid rent to plaintiff Nos.1 and 2.
It is further stated that Late Sh. M.S. Gupta expired on 25.11.1995
and only thereafter defendants No.1 and 3 began asserting claims
over Flat No.214, Supreme Enclave, Delhi-91. During the lifetime
of Late Sh. M.S. Gupta, the defendants had never claimed any right
in the said flat for about 20 years.
The plaintiffs further state that plaintiff No.1 filed Suit No.149/98
for permanent injunction against Sh. N.K.P. Sinha seeking restraint
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against interference with his possession of Flat No.214, Supreme
Enclave. In that suit, vide order dated 16.04.1998 passed by Sh. K.S.
Mohi, Sub-Judge, a Local Commissioner was appointed who
inspected the premises on 03.04.1998 at about 5.25 P.M. The Local
Commissioner reported that the main door was locked, which the
plaintiff opened, all rooms were found empty and locked, and after
inspection the plaintiff again locked the main door. The inspection
concluded at 5.40 P.M. and the report dated 15.04.1998 was
submitted by the Local Commissioner M.C. Upreti, Advocate.
It is further pleaded that in December 1999 defendant No.2
approached the plaintiffs seeking permission to use a portion of the
flat on leave and licence basis. Accordingly, on 25.12.1999 the
plaintiffs permitted defendant No.2 Neeraj Shekhar to use the upper
portion marked green for residential purposes for eleven months.
The staircase and remaining portion remained under the possession
and control of the plaintiffs. Defendant No.2 allegedly paid licence
fee of Rs.5,000/- for one month only and thereafter defaulted,
allegedly taking advantage of family disputes.
The plaintiffs further state that on 01.01.2000 Shri Jog Singh of
A-25, Kirpal Apartment, Patpar Ganj, Delhi was permitted to use
the lower portion of the flat, excluding the staircase, on licence basis
for eleven months.
It is further stated that Jog Singh overstayed but vacated the portion
and handed over possession to the plaintiffs on 03.01.2001, after
which the said portion remained with the plaintiffs until 03.03.2001
when they were allegedly illegally dispossessed.
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Similarly, defendant No.2 allegedly overstayed but vacated his
portion and handed over possession on 28.02.2001. However, on
03.03.2001 he allegedly re-occupied the flat along with defendants
No.1 and 3 and their agents after forcibly dispossessing the
plaintiffs.
The plaintiffs further state that about 15 days before 19.02.2001
defendant No.1 Manisha Gupta, defendant No.3 Mrs. Mridul
Aggarwal, their brother-in-law Shri Rajesh Aggarwal and one Shri
D.P. Mukherjee threatened plaintiff No.1 with forceful
dispossession from Flat No.214 with the help of antisocial elements,
and again on 02.03.2001 threatened him with harm and
dispossession. A complaint dated 02.03.2001 was lodged with SHO,
P.S. Trilokpuri.
The plaint reproduces the complaint dated 02.03.2001 wherein
plaintiff No.1 alleged that about 15 days earlier his sisters Manisha
Gupta and Mridul Aggarwal along with Rajesh Aggarwal and D.P.
Mukherjee had threatened to dispossess him from Flat No.214 with
the help of goonda elements and again threatened him with life and
dispossession. It is further stated that on 03.03.2001 plaintiff No.1
found the locks of the flat cut or replaced and his luggage including
documents removed except for a few articles. The front door lock
had allegedly been cut by defendants No.1 to 3 and their agents,
constituting criminal trespass. According to the plaintiffs, on
03.03.2001 plaintiff No.1 visited the flat and found that the in-built
iron door lock had been cut by welding machine. He reported the
matter to the SHO at about 8.00 P.M., whereafter SHO along with
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S.I. Rajesh Kumar and a Head Constable inspected the premises at
about 9.00 P.M. and found the locks cut and replaced with new
locks, suggesting the use of welding equipment and assistance of a
key-maker and carpenter. Upon checking, the plaintiff found several
articles missing including furniture, wooden almirah, sofa set,
dining table, 6 chairs, carpet, double bed, 2 small tables, 1 office
table and 5 chairs, besides utensils, gas cylinder, books and files. He
also claimed that Rs.1,50,000/- wrapped in polythene, bedsheet,
rajai and gadda and kept in the kitchen on the night of 24.02.2001
under lock and key was missing. It is further alleged that defendant
No.2 Neeraj Shekhar had been using the upper portion with two
rooms and a store on leave and licence basis for residential purposes
only, while the drawing room and one bedroom on the sixth floor
were used exclusively by plaintiff No.1, and that defendant No.2
had already vacated the premises on 28.02.2001 and returned the
key. The plaintiffs state that a complaint dated 04.03.2001 was
lodged at P.S. Trilokpuri, reproducing similar allegations regarding
the breaking of locks, missing articles and wrongful dispossession.
The plaintiffs further state that they were forcibly and wrongfully
dispossessed from Flat No.214 by defendants No.1 to 3 and their
agents pursuant to a conspiracy, and a complaint dated 03.03.2001
was filed. During police enquiry plaintiff No.1 requested the SHO to
verify details and modes of payment relating to the flat and
submitted a letter dated 20.03.2001 with payment details.
The plaint reproduces extracts of the letter dated 20.03.2001
addressed to the SHO requesting verification of payments made by
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plaintiff No.1 and his mother for Flat No.214 in continuation of
complaints dated 02.03.2001 and 04.03.2001. It further states that
when initial payment was made the complainant was not an
advocate whereas Manisha Gupta was an advocate and therefore the
flat was taken in her name with an understanding that she would
transfer the membership to the complainant once he became an
advocate or whenever desired by him, while possession would
remain with the complainant and he or his mother could use the flat
as they deemed fit, or alternatively she would refund the entire
amount with interest if she desired to retain the flat. The letter also
asserts that the flat remained in the legal, actual and exclusive
possession of the complainant from inception until the incident.
It is further pleaded that plaintiff No.1 filed a complaint under
Section 145 Cr.P.C. on 03.05.2001 before the area SDM, though no
action had been taken.
The plaintiffs further allege that defendant No.1 filed a collusive suit
against plaintiff No.1 and obtained an injunction order dated
30.03.2001 and misused the same to remove the remaining articles
of the plaintiffs and completely occupy the flat after forcibly
dispossessing the plaintiffs.
Without prejudice to their rights, the plaintiffs further state that
defendant No.1 in her own suit admitted the possession of plaintiff
No.1 by alleging in para 9 that the plaintiff had inducted
unauthorized persons in October/November 1999 and made
unlawful gains. In para 10 it was alleged that defendant No.1
refused to hand over profits derived from the flat and claimed
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ownership. In para 11 it was alleged that in the first week of
February 2001 one portion of the premises was vacant while the
upper portion was occupied by Neeraj Shekhar allegedly inducted
by plaintiff No.1, and that defendant No.1 along with her sister Mrs.
Mridul Aggarwal took control of the sixth floor portion with keys in
her custody and replaced the outer lock for security reasons. In para
16 it was alleged that defendant No.1 physically occupied the
premises in the first week of February 2001. In para 3 it was also
alleged that defendant No.1 resided outside Delhi and had handed
over one set of keys of the disputed property to her mother at A-9,
Neeti Bagh while retaining another set herself. The plaint further
refers to annexures relied upon by defendant No.1 wherein it was
alleged that the property stood in the name of Manisha Gupta as a
member of the Supreme Court Lawyers Society though actually
owned by their father Late Sh. M.S. Gupta who practised as a
lawyer for over 35 years and died on 25.11.1995, and that after his
death the property devolved upon his legal heirs namely Smt.
Prabha Devi Gupta, Sh. Piyush Gupta, Ms. Manisha Gupta and Ms.
Mridul Aggarwal. Reference is also made to Annexure-13 wherein
defendant No.1 allegedly informed the society on 25.02.2001 that
she had kept household articles in Flat No.214 and requested that
entry of her brother or any person on his behalf be stopped.
The plaintiffs assert that none of the defendants paid any amount
towards Flat No.214 to the Supreme Co-operative Group Housing
Society and that all dues were paid by plaintiff Nos.1 and 2 up to
03.03.2001 though receipts were issued in the name of defendant
No.1 as the society member. The plaintiffs claim that defendants
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No.1 to 3 are not the real owners of the flat and that plaintiff Nos.1
and 2 remained in exclusive, actual and settled possession until their
alleged illegal dispossession on 03.03.2001.
It is also stated that plaintiff No.1 had telephone No.2491140 in his
name for many years and paid the bills, copies of which are filed.
The plaintiffs further assert that defendants No.1 to 3 are liable for
compensation, damages, loss and mesne profits and that they reserve
the right to file a separate suit in that regard.
It is alleged that defendant No.2 defaulted in payment of licence fees
after the first month until 28.02.2001 and became liable to plaintiff
No.1 at Rs.500/- per day from 25.11.2000 to 28.02.2001 amounting
to Rs.46,500/- besides electricity, water and maintenance. Defendant
No.2 is also alleged to be liable for electricity charges of about
Rs.30,000/- and maintenance charges of Rs.600/- per month
totalling Rs.8,400/- during his occupation. It is further alleged that
defendant No.2 is liable for licence fee of Rs.5,000/- per month for
10 months totalling Rs.50,000/- and Rs.5,500/- per month for 3
months totalling Rs.16,500/- till 25.02.2001 and about Rs.600/- till
28.02.2001.
The plaintiffs further claim that defendants No.1 to 3 are jointly and
severally liable to pay mesne profits at Rs.1,400/- per day with
interest at 12% per annum from 03.03.2001 for illegal occupation
and that the property could fetch rent of Rs.12,000/- per month and
therefore the defendants are liable for Rs.60,000/- for five months
from 03.03.2001 and thereafter till possession continues. It is also
alleged that illegal occupation would attract a penalty of Rs.30,000/-
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per month amounting to Rs.1,50,000/- for five months from
03.03.2001 and that the defendants are further liable for
maintenance of Rs.600/- per month totalling Rs.3,000/- for five
months and electricity charges till the period of occupation. The
plaintiffs further claim pendente lite mesne profits with interest at
12% per annum and reserve the right to rely upon additional
documents and facts.
The plaintiffs accordingly pray that licence fees, electricity charges,
maintenance charges, penalty and pendente lite mesne profits with
interest at 12% per annum be decreed in their favour against the
defendants; that plaintiff Nos.1 and 2 be treated as being in
possession from the date of dispossession until they are restored to
possession of Flat No.214, Supreme Enclave, Mayur Vihar,
Delhi-110091; that plaintiff No.2 be declared the real and true
owner of the said flat; and that any other appropriate relief or
declaration arising from the facts stated in the plaint be granted.
3. CASE OF THE DEFENDANT No. 1 AND 3 AS PER
WRITTEN STATEMENT:-
Briefly, the essential facts and averments required for a fair
adjudication of the present suit, as presented in the Written
Statement, are as follows:
The defendants state that Defendant No. 1 is the owner and allottee
of Flat No. 214, Supreme Enclave, Mayur Vihar, Phase-I, New
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Group Housing Society Ltd., which allotted the said property to her.
A membership/share certificate dated 06.04.1992 and the possession
letter dated 29.09.1993 (received on 21.12.1995) issued by the
society in favour of Defendant No. 1 are relied upon. The property
stands assessed for house tax in the name of Defendant No. 1 and
the electricity bills are also issued in her name. All payments
towards the property were made against receipts issued by the
society in favour of Defendant No. 1. It is specifically denied that
the plaintiffs were ever in actual physical possession of the disputed
property. According to the defendants, Plaintiff No. 1 had earlier
lodged a false complaint with the local police claiming possession of
the flat, but after investigation the police filed a closure report
before the concerned Metropolitan Magistrate, concluding that
Plaintiff No. 1 was neither the owner nor ever in possession of the
flat, had never resided there, and had no household articles in the
premises as alleged by him. The society also confirmed this position
before the police through its letter dated 07.03.2000.
It is further stated that Defendant No. 1, as she was residing outside
Delhi, had entrusted one set of keys of the premises to her mother,
Plaintiff No. 2, who was residing with Plaintiff No. 1 at A-9, Neeti
Bagh, New Delhi, while the original set of keys remained with
Defendant No. 1. In the year 1995, Defendant No. 1, through
Plaintiff No. 2, let out the premises to one Sh. N.K.P. Sinha.
However, in 1998, Plaintiff No. 1 allegedly got the premises vacated
fraudulently and obtained a Local Commissioner’s report showing
possession in his favour. The report only recorded that the premises
were lying vacant and that the locks were operated by Plaintiff No.CS No. 2984/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 13 of 70
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1. The suit in which the report was obtained was filed only against
the tenant, Sh. N.K.P. Sinha, and not against the present defendants.
The defendants later came to know that the said tenant had also filed
a suit before the High Court of Delhi alleging that he had been
fraudulently evicted from the premises, and Defendant No. 1 was
also arrayed as a party in that suit. Defendant No. 3 thereafter
moved an application for vacation of the stay and filed objections to
the Local Commissioner’s report. Plaintiff No. 1 ultimately did not
pursue the matter, and the civil court dismissed the suit and vacated
the interim status quo order by order dated 24.11.1998. Plaintiff No.
1 filed an application for restoration of the suit, which was also
dismissed on 15.04.1999. Thus, the suit along with the Local
Commissioner’s report and the status quo order stood dismissed.
The defendants maintain that they were not parties to that suit and
are not bound by the Local Commissioner’s report.
The defendants further state that proceedings under Section 340
Cr.P.C. were initiated against Plaintiff No. 1 for committing perjury
and fraud upon the court on the application of Defendant No. 3, and
the matter is pending trial. It is also stated that a separate suit
regarding the intestate property at A-9, Neeti Bagh is pending
wherein status quo has been ordered, and another suit has been filed
by the defendants for equal mutation of that property. A complaint
has also been made by the defendants before the Bar Council of
Delhi against Plaintiff No. 1. According to the defendants, Plaintiff
No. 1 had been pressurising them to execute a relinquishment deed
in respect of the valuable Neeti Bagh property and had been
threatening them with dire consequences and false criminal cases.
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The defendants further contend that in October-November 1999
Plaintiff No. 1 deceitfully inducted unauthorized occupants in the
flat and derived unlawful gains while causing financial loss to
Defendant No. 1. This fact allegedly came to the knowledge of the
defendants in December 2000 or January 2001, when Defendant No.
1 demanded the profits collected from the property, but Plaintiff No.
1 refused and instead began asserting false ownership claims. In the
first week of February 2001, Defendant No. 1 discovered that the
sixth floor portion of the premises was vacant while the seventh
floor portion was occupied by one Mr. Neeraj Shekhar (Defendant
No. 2), who had been inducted illegally by Plaintiff No. 1. Acting in
her capacity as owner and with the approval of the society,
Defendant No. 1 took control of the vacant portion with the
assistance of Defendant No. 3. The occupant of the upper portion
was informed of the situation and agreed, with the intervention of
the society’s executive members, to pay future charges to Defendant
No. 1. For security reasons, the outer gate lock was replaced and a
duplicate key was handed over to the occupant.
It is further stated that on 25.02.2001 and again on 28.02.2001
Plaintiff No. 1 attempted to forcibly enter the property and
dispossess the defendants, but these attempts were resisted with the
intervention of society members, and complaints were made to the
society. According to the defendants, Plaintiff No. 1 repeatedly
threatened them and filed false police complaints in order to
pressurize them and grab the property. The defendants maintain that
Plaintiff No. 1 has no right or interest in the property and that
Plaintiff No. 2 had earlier never asserted any ownership claim. It is
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alleged that Plaintiff No. 2 has now joined the suit only under the
influence and pressure of Plaintiff No. 1. Apprehending forcible
dispossession, Defendant No. 1 filed a suit for permanent injunction
(Suit No. 133/2001), wherein the court appointed a Local
Commissioner and directed maintenance of status quo regarding
possession. The Local Commissioner reported that Defendant No. 2
was occupying two rooms on the seventh floor as a permissive user
of Defendant No. 1 and that the sixth floor portion and a bathroom
on the seventh floor were in possession of Defendant No. 1. Later,
on 09.09.2001, Defendant No. 2 voluntarily vacated the premises
and handed over possession to the defendants. During the dispute,
certain complaints were also made against Defendant No. 2 for
misbehaviour, and proceedings under Sections 107/150 Cr.P.C.
were initiated by the police. Subsequently, as Defendant No. 2
vacated the premises voluntarily, the contempt proceedings initiated
against him were withdrawn.
The defendants further state that Defendant No. 1 and Defendant
No. 3 have since become joint allottees and co-owners of the
premises in the records of the society. By way of preliminary
objections, it is contended that the suit is vague and ambiguous, that
the plaintiffs have not specified the liquidated damages claimed, and
that the relief of declaration without seeking possession is barred
under Section 34 of the Specific Relief Act. The suit is also alleged
to be barred by the Benami Transactions (Prohibition) Act, 1988,
since the plaintiffs are attempting to claim that the property is held
benami in the name of Defendant No. 1. It is further objected that
the suit suffers from non-joinder of necessary parties, namely the
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Supreme Cooperative Group Housing Society Ltd. and the State of
NCT of Delhi. The defendants also contend that the plaint has not
been properly signed by Plaintiff No. 2 and that the suit has been
filed under coercion exerted by Plaintiff No. 1. It is further pleaded
that the suit is barred under Section 10 CPC due to pendency of
another suit between the same parties on the same subject matter,
and is also barred by Order II Rule 2 CPC, constructive res judicata,
and limitation.
On merits, the defendants deny the allegations made in the plaint
and assert that Defendant No. 1 has been a practicing advocate in
the Supreme Court since 1978 and had become a member of the
housing society in her own right. All payments towards the flat were
made on her behalf, partly out of her professional earnings collected
by her father and deposited with the mother for payment to the
society. It is denied that the deceased father purchased the property
for the benefit of the plaintiffs or that the plaintiffs ever remained in
possession of the flat. The defendants maintain that the society
delivered possession of the flat to Defendant No. 1 through a
possession letter dated 29.09.1993. The plaintiffs’ allegations of
possession, tenancy arrangements, and dispossession are specifically
denied, and it is reiterated that any alleged Local Commissioner
report obtained in earlier proceedings merely recorded that the
premises were vacant and that Plaintiff No. 1 operated the locks,
which does not establish possession or ownership.
The defendants also deny liability for damages, mesne profits,
maintenance charges, electricity charges, or any other monetary
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claims raised by the plaintiffs. It is stated that Defendant Nos. 1 and
3 have been paying electricity and maintenance charges themselves
and even paid arrears of electricity dues amounting to Rs. 22,439/-
for the period during which Plaintiff No. 1 had illegally inducted
tenants. It is alleged that Plaintiff No. 1 unlawfully collected
approximately Rs. 1,70,500/- from unauthorized tenants and is liable
to account for the same, along with other dues totalling Rs.
5,42,939/-, which has been claimed as a counter-claim in a
connected suit. The defendants also allege that Plaintiff No. 1
obtained a telephone and electricity connection in the premises by
forging the signature of Defendant No. 1 and without her knowledge
or consent. According to the defendants, the plaintiffs were never in
settled possession of the premises and were not forcibly
dispossessed at any time.
The defendants further deny that they are in illegal possession or
that the plaintiffs have suffered any loss or are entitled to rent,
mesne profits, or compensation as claimed. They assert that the
property is in their lawful possession as owners and that the
plaintiffs have deliberately concealed material facts and filed the
present suit with ulterior motives. It is also stated that the plaintiffs
had earlier filed a suit under Section 6 of the Specific Relief Act
(Suit No. 1816/2001), and the present suit for recovery of money
and damages (Suit No. 1817/2001) is barred under Order II Rule 2
CPC as the relief of damages ought to have been claimed in the
earlier suit itself. The defendants also contend that the suit has not
been properly valued and the requisite court fee has not been paid.
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In view of the above facts and circumstances, the defendants pray
that the suit filed by the plaintiffs be dismissed with costs and that
such other or further orders as this Hon’ble Court may deem fit and
proper be passed in favour of the answering defendants.
4. REJOINDER:-
Rejoinder has also been filed by plaintiff no. 1 and 2 to the
written statement filed by defendant no. 1 and 3, wherein the
submissions made in the written statement have been denied and the
contents of the plaint have been reaffirmed and reiterated.
5. ISSUES:-
Upon completion of pleadings, the following issues were
framed for trial on 11.11.2009.
1. Is the suit filed within the period of limitation?
OPP
2. Is the suit barred by provisions of the Benami
Transactions (Prohibition) Act 1988? OPD
3. Is the suit maintainable and not barred by virtue
of proviso to under section 34 of the Specific
Relief Act? OPP
4. Is the suit barred by virtue of provision Under
Order 10 CPC and Order 2 Rule 2 CPC? OPD
5. Is the suit properly signed and instituted? OPP
6. Does the plaintiff prove his ownership of the
suit property i.e Flat No-214, Supreme Enclave,
Phase-I, Mayur Vihar, Delhi? OPP
7. Did the plaintiff No.2 had executed a legal and
valid will dated 14.07.2007 in the favour of Mr.
Mukul? OPP
6. PLAINTIFFS’ EVIDENCE:-
The plaintiff No. 1, Sh. Piyush, examined himself as PW-1
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and tendered his evidence by way of affidavit (Ex. PW-1/A),
wherein he reaffirmed the contents and averments made in the
plaint. In support of his case, he relied upon 59 documents, which
have been referred to as Ex. P-1 to Ex. P-14 and Ex. PW1/15 to
PW1/48, Ex. PW1/50 to Ex. PW1/55, Ex. PW1/57 to Ex. PW1/59,
Ex. PW1/63 and Ex. PW1/64 in his affidavit of evidence. However,
though the documents were referred to as Ex. PW1/49 and Ex.
PW1/56 in the affidavit of evidence, the same are not available on
the court record. Accordingly, the said two documents stand de-
exhibited.
In his affidavit of evidence, the Will dated 14.07.2007 has been
referred to as Ex. 63 instead of Ex. PW1/63. The same shall be read
as Ex. PW1/63.
The plaintiff also relied upon three additional documents, being
copies of bank passbooks, which were exhibited as Ex. PW1/60 to
Ex. PW1/62. The originals of Ex. PW1/60 and Ex. PW1/62 were
seen and returned. He further relied upon two additional documents,
which were marked as Mark ‘A’ and Mark ‘H’.
PW-1 Sh. Piyush, was extensively cross-examined by the learned
counsels for the defendant no. 1 & 3.
Sh. Mukul (LR of both the plaintiffs) was examined as PW-2 and
tendered his evidence by way of affidavit (Ex. PW-2/A), wherein he
supported the averments made in the plaint, with certain
modifications.
PW-2, Sh. Mukul, was duly cross-examined by the learned counsel
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appearing on behalf of Defendant No. 3.
No testimony of any witness bearing serial number PW-3 is
available on record.
The plaintiff also examined Sh. Har Singh as PW-4. He deposed that
he had been summoned to produce the record of payment pertaining
to Flat No. 214, Supreme Enclave, CGHS Ltd., Delhi, Meter No.
9807618, K. No. 148918, for the year 1999 in respect of an amount
of Rs. 2,240/-. He further deposed that BSES YPL came into
existence in the year 2002 and since then it has been maintaining
computerized records, which he had brought with him. He further
stated that prior to the year 2002, Delhi Vidyut Board was in
existence and the records pertaining to the year 1999 are not
available with them. The plaintiff submitted that he does not require
any record from the year 2002 onwards.
PW-4 Sh. Har Singh was not cross-examined by the defendants
despite opportunity having been granted.
The plaintiff also examined Sh. Sanjay Bora as PW-5. He deposed
that he had been summoned to produce the record pertaining to
registered post articles dated 04.09.2001 and 10.01.2003 of Patiala
House Post Office, Delhi. However, he stated that the said record
had already been weeded out as per departmental rules in
accordance with the provisions of P&T Manual, Volume VI, Part I,
Rule 26 and, therefore, the same could not be produced. He further
proved the letter issued by the then Senior Superintendent of Post
Offices, Sh. Ram Babu Sharma, to this effect as Ex. PW5/A bearingCS No. 2984/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 21 of 70
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his signatures at Point A. The copy of the weeding-out register was
exhibited as Ex. PW5/B, duly attested by the Sub-Post Master,
Patiala House Post Office, at Point X (2 pages), and the copy of the
P&T Manual was exhibited as Ex. PW5/C.PW-5 Sh. Sanjay Bora was not cross-examined by the defendants
despite opportunity having been granted.
The plaintiff also examined Sh. Surender Singh as PW-6, who
produced the record pertaining to landline number 22791140. He
deposed that all the bills in respect of the said phone number had
been paid till 29.03.2001, on which date the said number was
disconnected. He also produced the certificate in this regard, which
was exhibited as Ex. PW6/A. He further stated that the security
deposited with MTNL had been refunded to the subscriber.
PW-6 Sh. Surender Singh was not cross-examined by the defendants
despite opportunity having been granted.
The plaintiff also examined Sh. Shwetank Kumar Gupta as PW-7.
He deposed that he had been summoned to produce the record
pertaining to cheque No. 11270 dated 20.01.1992 for Rs. 1,15,000/-
drawn on Account No. 687 of Sh. M.S. Gupta. However, he stated
that the said record was not available in their branch as it had been
destroyed in a fire accident that occurred in the year 2012. In this
regard, he proved the letter duly signed by their Assistant General
Manager as Ex. PW7/A bearing his signatures at Point A.PW-7 Sh. Shwetank Kumar Gupta was not cross-examined by the
defendants despite opportunity having been granted.
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The plaintiff also examined Sh. Himanshu Verma as PW-8. He
deposed that he had been summoned to produce the record
pertaining to Loan Account No. 12/46 of Smt. Prabha Devi Gupta,
the record of her Account No. 5388, and the record of Cheque No.
297327 dated 15.09.1994 for a sum of Rs. 1,13,945/-. He further
deposed that he was unable to produce the said record as the same
had been weeded out being old record in accordance with the
regulations issued by the RBI. In this regard, he proved the letter
issued by their Chief Manager as Ex. PW8/A bearing his signatures
at Point A and the copy of the relevant regulations as Ex. PW8/B.PW-8 Sh. Himanshu Verma was not cross-examined by the
defendants despite opportunity having been granted.
The plaintiff also examined Sh. Prabhas Kumar as PW-9. He
deposed that the statement of account with regard to Cheque No.
328582 dated 23.03.1999 was not traceable despite his best efforts.
In this regard, he proved the letter dated 06.06.2018 issued by Shri
Praveen Kumar, Manager, as Ex. PW9/C bearing his signatures at
Point X.PW-9 Sh. Prabhas Kumar was cross-examined by Defendant No. 3.
The plaintiff also examined Sh. Hasnain Imam as PW-10. He
deposed that in the absence of the account number of Smt. Prabha
Devi Gupta, the bank was unable to provide any details and, in any
event, the record could not be traced as the matter pertained to about
28 years ago and the record was no longer available with the bank.
In this regard, he proved the letter dated 04.06.2018 issued by Shri
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Sanjeev Kumar Sharma, Chief Manager, as Ex. PW10/A. He also
proved the relevant portion of the Banking Companies Rules, 1985
as Ex. PW10/B and deposed that as per the said Rules, cheque
details are maintained for five years and ledger details for eight
years.
PW-10 Sh. Hasnain Imam was not cross-examined by Defendant
No. 3 despite opportunity having been granted.
The plaintiff also examined Sh. Ramanuj as PW-11. He deposed that
he was a bank official and had been summoned to produce the
cheque details of Smt. Prabha Devi Gupta for the years 1982 and
1990. He further deposed that he had been instructed to state that the
said record, being old, had already been destroyed. In this regard, he
proved the certificate dated 31.08.2013 as Ex. PW11/A along with
the relevant portion of the Instructions Book as Ex. PW11/B.
PW-11 Sh. Ramanuj was not cross-examined by Defendant No. 3
despite opportunity having been granted.
The plaintiff also examined Sh. M.C. Upreti as PW-12. He deposed
that he was a practising advocate since the year 1989 and his
enrolment number is D-86/1989. He further deposed that he had
been appointed as Local Commissioner by the Court of Sh. K.S.
Mohi, the then Ld. Civil Judge, Delhi, in Suit No. 149/98 titled
“Piyush vs. N.K.P. Sinha“, and that he had prepared his Local
Commissioner’s report and submitted the same before the Court on
15.04.1998. The said report bore his signatures at Point A and had
already been exhibited as Ex. D3.
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PW-12 Sh. M.C. Upreti was cross-examined by Defendant No. 3.
The plaintiff also examined Sh. Vikram as PW-13, who produced
the summoned record of Suit No. 133/2001 titled “Manish Gupta vs.
Piyush Gupta“, which contained the original report of the Local
Commissioner, Sh. Pankaj Sharma, Advocate, dated 31.03.2001
along with 21 original photographs, as mentioned in the report. The
said report had already been exhibited as Ex. PW1/DX8
(photographs not forming part of the exhibit). Photocopies of the
photographs were taken on record and exhibited as Ex. PW13/1
(colly.) (21 photographs). The original record was seen and
returned.
PW-13 Sh. Vikram was not cross-examined by Defendant No. 3
despite opportunity having been granted.
The plaintiff also examined Ct. Inderjeet as PW-14. He deposed that
he had been summoned to produce the record of receipts/complaints
dated 02.03.2001, 04.03.2001, 20.03.2001, 24.09.2001 and
17.10.2001 of Police Station Trilokpuri. However, he deposed that
as per orders dated 26.02.2018 of the Deputy Commissioner of
Police, the old record of Police Station Pandav Nagar had been
destroyed. In this regard, he proved the letter of the Deputy
Commissioner of Police signed by the concerned ACP (HQ) as Ex.
PW14/A.
PW-14 Ct. Inderjeet was not cross-examined by Defendant No. 3
despite opportunity having been granted.
The plaintiff also examined Sh. Mukesh Kumar as PW-15, who
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produced the summoned record i.e., the case file of the suit titled
“Piyush vs. N.K.P. Sinha” bearing Suit No. 320/2002 (Old No.
149/1998), which had been dismissed in default on 24.11.1998 with
the interim order vacated. The copy of the said order was exhibited
as Ex. PW15/1. He further deposed that an application for
restoration had thereafter been filed by the plaintiff therein, which
was also dismissed vide order dated 27.03.1999, the copy of which
was exhibited as Ex. PW15/2. In the meantime, an application under
Section 340 Cr.P.C. had been filed by Ms. Mridul Aggarwal
(Defendant No. 3 in the present suit), wherein her statement was
recorded as AW-1 and exhibited as Ex. PW15/3. The statement of
Sh. N.K.P. Sinha was recorded as AW-2 and exhibited as Ex.
PW15/4. Thereafter, the said application was disposed of as
withdrawn vide order dated 04.07.2005, the copy of which was
exhibited as Ex. PW15/5. He further deposed that Ex. AW2/2 was
existing in the said file, which was a suit for specific performance
filed by Mr. N.K.P. Sinha against Prabha Devi & Ors., and a copy of
the same was taken on record and exhibited as Ex. PW15/6. A copy
of the plaint of Suit No. 149/1998 along with the site plan was
exhibited as Ex. PW15/7. The original case file was seen and
returned.
PW-15 Sh. Mukesh Kumar was cross-examined by Defendant No.
3.
The plaintiff also examined Sh. Piyush Dwivedi as PW-16. He
produced the summoned record, i.e., attested photocopies of the
receipts of the society from the year 1982 to 2000, which were
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collectively exhibited as Ex. PW16/1 (colly.) (12 in number). He
further deposed that three specific receipts, namely Receipt No.
8394 dated 11.04.2000 for Rs. 9,464/-, Receipt No. 5000 dated
16.04.2000 for Rs. 1,825/- and Receipt No. 721 dated 07.03.1995
for Rs. 1,012/-, which he had been directed to produce, were not
available in their records and, therefore, he was unable to produce
the same.
PW-16 Sh. Piyush Dwivedi was cross-examined by Defendant No.
3.
The plaintiff also examined Sh. Moinuddin Siddique as PW-17, who
tendered his evidence by way of affidavit (Ex. PW17/A). In his
affidavit, he stated that he was one of the attesting witnesses to the
Will dated 14.07.2007 and was competent to depose in the matter.
PW-17, Moinuddin Siddique, deposed that he is an attesting witness
to the Will dated 14.07.2007 and is competent to swear the affidavit.
He stated that on 14.07.2007 at about 16:15 hours, the testatrix
herself had the Will typed and read over its contents to all the
attesting witnesses, and that the certified copy of the said Will is Ex.
PW2/63. He further deposed that the said Will bears his signatures
in his own handwriting at point D, and that Plaintiff No. 2, Shri
Mahip Naik, Advocate, Shri Praveen Kumar, and Shri Devender
Sain, Advocate, signed and duly executed the same at points A, B,
C, and E respectively, in their own handwritings, in the presence of
the testatrix, the deponent, and each other.
He further deposed that the Will dated 14.07.2007 (Ex. PW2/63)
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was signed by the testatrix when she was in a sound disposing state
of mind, that she understood the nature and effect of the dispositions
contained therein, and that she executed the same of her own free
will. He also stated that the testatrix signed the Will in the presence
of the attesting witnesses, who in turn attested the same at her
direction, in her presence and in the presence of each other. He
further deposed that thereafter the testatrix handed over the
document to Sh. M. Siddique, Advocate, in the presence of the
deponent and the other witnesses at A-9, Neeti Bagh, New Delhi.
PW-17 Sh. Moinuddin Siddique was cross-examined by Defendant
No. 3.
The plaintiff also examined Sh. Praveen Kumar Gupta as PW-18,
who tendered his evidence by way of affidavit (Ex. PW18/A). In his
affidavit, he stated that he was one of the attesting witnesses to the
Will dated 14.07.2007 and was competent to depose in the matter.
PW-18, Praveen Kumar Gupta, deposed that he is an attesting
witness to the Will dated 14.07.2007 and is competent to swear the
affidavit. He stated that on 14.07.2007 at about 16:15 hours, the
testatrix herself had the Will typed and read over its contents to all
the attesting witnesses, and that the certified copy of the said Will is
Ex. PW2/63. He further deposed that the said Will bears his
signatures in his own handwriting at point C, and that Plaintiff No.
2, Shri Mahip Naik, Advocate, Shri M. Siddique, Advocate, and
Shri Devender Sain, Advocate, signed and duly executed the same at
points A, B, D, and E respectively, in their own handwritings, in the
presence of the testatrix, the deponent, and each other.
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He further deposed that the Will dated 14.07.2007 (Ex. PW2/63)
was signed by the testatrix when she was in a sound disposing state
of mind, that she understood the nature and effect of the dispositions
contained therein, and that she executed the same of her own free
will. He also stated that the testatrix signed the Will in the presence
of the attesting witnesses, who in turn attested the same at her
direction, in her presence and in the presence of each other. He
further deposed that thereafter the testatrix handed over the
document to Sh. M. Siddique, Advocate, in the presence of the
deponent and the other witnesses at A-9, Neeti Bagh, New Delhi.
PW-18 Sh. Praveen Kumar Gupta was cross-examined by
Defendant No. 3.
The plaintiff also examined Dr. Arun Gupta as PW-19, who
tendered his evidence by way of affidavit (Ex. PW19/A). In his
affidavit, he deposed that on 03.03.2001 at about 12:00 noon, the
defendants along with their agents broke open the locks of Flat No.
214, Supreme Enclave, Mayur Vihar Phase-I, New Delhi and
removed the luggage from the said flat on the pretext that they had
lost the keys and intended to shift. He further deposed that the said
act was carried out with the assistance of a welding machine, a
carpenter and a key maker, whom he stated he would be able to
identify if confronted in his presence.
He further deposed that he later came to know that on 03.03.2001
the defendants, along with their agents, had dispossessed the
plaintiffs from the said premises otherwise than in due course of
law.
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PW-19 Dr. Arun Gupta was cross-examined by Defendant No. 3.
The plaintiff also examined Sh. Hari Shanker Chaturvedi as PW-20,
who tendered his evidence by way of affidavit (Ex. PW20/A). In his
affidavit, he deposed that on 09.04.1988 and 10.04.1988 he had
installed seven wooden doors along with inbuilt locks and latches at
Flat No. 214, Supreme Enclave, Mayur Vihar Phase-I, New Delhi at
the instance of the plaintiffs. He further deposed that after
completing the said work, he handed over all the sets of keys to
Plaintiff No. 1 on 10.04.1988. He also stated that the contents of his
affidavit were true and correct to his knowledge.
PW-20 Sh. Hari Shanker Chaturvedi was cross-examined by
Defendant No. 3.
The plaintiff also examined Sh. Devendra Sain as PW-21, who
tendered his evidence by way of affidavit (Ex. PW21/A). In his
affidavit, he deposed that he was one of the attesting witnesses to
the Will dated 14.07.2007 and was competent to depose in the
matter.
He further deposed that on 14.07.2007 at about 04:15 p.m., the
testatrix herself had typed and read over the Will to all the attesting
witnesses. The certified copy of the said Will was exhibited as Ex.
PW2/63. He stated that the said Will bore his signatures in his own
handwriting at Point E and that Plaintiff No. 2, Sh. Mahip Naik,
Advocate, Sh. Praveen Kumar Gupta and Sh. M.S. Siddique,
Advocate had duly signed and executed the said Will at Points A, B,
C and D respectively in their own handwritings in the presence of
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the testatrix, the deponent and each other.
He further deposed that the Will dated 14.07.2007 (Ex. PW2/63)
had been signed by the testatrix while she was in a sound disposing
state of mind and that she fully understood the nature and effect of
the dispositions made therein. He stated that the testatrix had
executed the said Will of her own free will and had signed the same
in the presence of the attesting witnesses, who in turn attested the
same at her direction and in her presence as well as in the presence
of each other. Thereafter, the testatrix handed over the said
document to Sh. M.S. Siddique, Advocate in the presence of the
deponent and the other witnesses at A-9, Neeti Bagh, New Delhi.
PW-21 Sh. Devendra Sain was cross-examined by Defendant No. 3.
The plaintiff also examined Sh. Jabbar Ahmad as PW-22. He
deposed that he knew Plaintiff No. 1 as he was earlier a practising
advocate at Patiala House Courts and used to sit in the chamber of
Plaintiff No. 1 during the period from 1999 to 2001.
During his examination, the documents already exhibited as Ex.
PW1/53, Ex. PW1/54 and Ex. PW1/57 were shown to the witness,
and he identified his signatures on the said documents at Point A.
He further deposed that although he did not know the exact contents
of the said documents, he could state that the same were
lease/licence deeds.
PW-22 Sh. Jabbar Ahmad was cross-examined by Defendant No. 3.
The plaintiff also examined Sh. Yawer Khan as PW-23, who
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produced the summoned record, i.e., the case file of CS (OS) No.
881/2004. The certified copy of the said suit along with the order
sheets thereof (pages already numbered from 620 to 654) was
exhibited as Ex. PW23/A.
PW-23 Sh. Yawer Khan was not cross-examined by Defendant No.
3 despite opportunity having been granted.
The plaintiff also examined Sh. Ram Niwas as PW-24. He deposed
that he was a daily wager and worked as a painter/whitewasher by
profession. He further deposed that he did not know Plaintiff No. 1
present in Court on that day, though it might be possible that about
20-25 years earlier he had performed daily wage work of
whitewashing/painting at some premises belonging to him, possibly
at Gulmohar Park, but he could not recall the same correctly.
He further deposed that he had not carried out whitewashing or
painting regularly at the plaintiff’s premises from 1988 to 2000 on
every Diwali. He also denied the suggestion that he had been won
over by the opposite party and was therefore deposing falsely.
PW-24 Sh. Ram Niwas was cross-examined by Defendant No. 3.
The plaintiff also examined Sh. Ishwar Singh as PW-25, who
produced the summoned record, i.e., the case file of CS (OS) No.
285 of 2011. He deposed that he had seen Ex. PW1/63, i.e., the
certified copy of the Will dated 14.07.2007 of Smt. Prabha Devi
Gupta available on the judicial record of the present case. He further
deposed that he had compared the same with the record brought by
him, which contained the original Will. He stated that the copy of
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Ex. PW1/63 was a true certified copy of the original. The original
record was seen and returned.
PW-25 Sh. Ishwar Singh was cross-examined by Defendant No. 3.
7. DEFENDANT’S EVIDENCE (Defendant no. 3):-
The defendant examined Sh. Piyush Dwivedi as DW-1. He
deposed that he was working as Manager in Supreme Co-operative
Group Housing Society Ltd., situated at Supreme Enclave, Mayur
Vihar, Phase-I, Delhi, and that he had brought the summoned record
available with the Society with respect to Flat No. 214, Supreme
Enclave, Delhi.
He further deposed that he had seen the photocopy of the letter dated
22.07.2001 on the Court record and stated that the same bore the
signatures of Sh. P. Parmeshwaran. He stated that he could identify
the signatures as he had seen him signing and writing and had
worked with him. The said document was exhibited as Ex. DW-1/1,
and he had brought the office copy of the same.
He further deposed that he had seen the photocopy of the letter
addressed to the SHO dated 07.03.2001 on the Court record and
stated that the same bore the signatures of Sh. D.P. Mukherjee, Sh.
G.K. Bansal and Sh. B.P. Singh. He stated that he could identify
their signatures as he had seen them signing and writing and had
worked with them. The said document was exhibited as Ex.
DW-1/2, and he had brought the office copy of the same.
He further deposed that he had seen the photocopy of the letter dated
25.02.2001 on the Court record and stated that the same had been
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received by Sh. Ajit Chandra, the Manager of Supreme Co-operative
Group Housing Society. He stated that he could identify the
signatures of Sh. Ajit Chandra as he had seen him signing and
writing and had worked with him. The said document was exhibited
as Ex. DW-1/3, and he had brought the original of the same.
He further deposed that from the original record available with him,
the Society had received and was in possession of the original No
Objection dated 30.07.1999 and the application for allotment in joint
name dated 30.07.1999. The photocopies of the same were already
on the judicial record and were exhibited as Ex. DW-1/4 (colly).
He further deposed that he had seen the photocopy of the letter dated
03.11.1999 on the Court record and stated that the same bore the
signatures of Sh. P.N. Gupta, the then Secretary of Supreme Co-
operative Group Housing Society. He stated that he could identify
the signatures as he had seen him signing and writing and had
worked with him. The said document was exhibited as Ex. DW-1/5,
and he had brought the original of the same.
He further deposed that from the original record available with him,
the Society had received and was in possession of the original letter
dated 25.09.2001 (Letter for Joint Allotment) along with an
affidavit. The photocopies of the same were already on the judicial
record and were exhibited as Ex. DW-1/6 (colly).
He further deposed that from the original record available with him,
the Society had received and was in possession of the original letter
dated 28.09.2001 (Letter for Joint Allotment) along with an
affidavit. The photocopies of the same were already on the judicial
record and were exhibited as Ex. DW-1/7 (colly).
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He further deposed that from the original record available with him,
the Society had received and was in possession of the original letter
dated 03.04.2001 regarding information about the non-payment of
dues by Sh. Neeraj Shekhar. The photocopy of the same was already
on the judicial record and was exhibited as Ex. DW-1/8 (original
seen and returned). He further stated that the said letter had been
received by Sh. Ajit Chandra, the Manager of Supreme Co-operative
Group Housing Society, whose signatures he could identify as he
had seen him signing and writing and had worked with him. He had
brought the original of the same.
He further deposed that from the original record available with him,
the Society had received and was in possession of the original letter
dated 26.06.2001 containing a complaint against Sh. Neeraj
Shekhar. The photocopy of the same was already on the judicial
record and was exhibited as Ex. DW-1/9 (original seen and
returned). He further stated that the same had been received by Sh.
Ajit Chandra, the Manager of the Society, whose signatures he could
identify as he had seen him signing and writing and had worked
with him. He had brought the original of the same.
He further deposed that from the original record available with him,
the Society had received and was in possession of the original
affidavit dated 06.04.1999 (Affidavit of Manisha Gupta). The
photocopy of the same was already on the judicial record and was
exhibited as Ex. DW-1/10 (original seen and returned). He had
brought the original of the same.
He further deposed that as per the Society record brought by him,
Flat No. 214 was originally allotted to Manisha Gupta.
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DW-1 Sh. Piyush Dwivedi was duly cross-examined by Sh. Mukul.
8. ARGUMENTS:-
(Since the parties advancing arguments addressed both the
present case and the connected matter bearing No. 2985/16 together,
and the submissions are inseparable, the arguments pertaining to
both cases are set out hereinafter.)Arguments on behalf of Mukul (one of the LRs of the
plaintiff):
On behalf of Sh. Mukul, appearing in his capacity as the legal
representative of both the original plaintiffs (both of whom have
since expired), it is submitted that the present suit has been instituted
under Section 6 of the Specific Relief Act, 1963, and is required to
be adjudicated within the limited scope prescribed thereunder,
namely, determination of possession, dispossession, and institution
of the suit within six months, without entering into questions of title.
Reliance is placed upon the judgment of the Hon’ble Supreme Court
in Sanjay Kumar Pandey & Ors. v. Gulbahar Sheikh & Ors. , (2004)
4 SCC 664, to contend that a suit under Section 6 is summary in
nature and confined to possession alone. It is further submitted that
the remedy under Section 6 is available even to a trespasser in
settled possession and that a person claiming to be the true owner
cannot dispossess such a person except by due process of law. In
this regard, reliance is also placed upon the judgment of the Hon’ble
Supreme Court in Ram Rattan & Ors. v. State of Uttar Pradesh, AIR
1977 SC 619, to submit that once possession is accomplished to theCS No. 2984/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 36 of 70
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knowledge of the true owner, such owner must resort to remedies
available under law. Further reliance is placed upon the judgment of
the High Court of Himachal Pradesh in Kamal Kishore Gupta &
Ors. v. Prem Lata & Ors., 2006 (3) ShimLC 40, to contend that the
remedy under Section 6 can be availed even by a trespasser, and a
person entitled to possession may avail remedies under both
Sections 5 and 6 of the Act.
It is further submitted that the plaintiffs have duly proved (i) their
possession, (ii) their dispossession, and (iii) institution of the suit
within the prescribed period. In support of possession and
dispossession, reliance is placed upon admissions made by
defendant Nos. 1 and 3 in their joint written statement. It is pointed
out that in para 12 thereof, it has been stated that defendant No. 1
found a portion of the premises vacant while another portion was in
possession of defendant No. 2, who had been inducted by plaintiff
No. 1, and that defendant No. 1 took control of a portion of the
premises. Further, in para 1 (page 12), it is stated that defendant No.
2 vacated the premises in favour of the answering defendant on
09.09.2001. In para 4 (page 14), it is alleged that plaintiff No. 1 had
inducted unauthorized occupants and collected money, and that
arrears of electricity dues were paid by defendant Nos. 1 and 3. In
para 9 (page 16), it is again alleged that plaintiff No. 1 inducted
unauthorized tenants. In para 22 (page 19), it is stated that a
telephone connection was obtained by plaintiff No. 1 and given to
such occupants. In para 4 (page 2), it is stated that plaintiff No. 1
had managed to get the premises vacated in 1998 and obtained a
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Local Commissioner’s report showing the premises to be vacant
with keys operated by him. In paras 10 and 11 (page 4), it is alleged
that plaintiff No. 1 had inducted unauthorized persons in
October/November 1999 and was deriving profits therefrom. These
pleadings, it is submitted, constitute clear admissions of possession
and control of the plaintiffs over the suit property.
It is further contended that even as per the defendants’ own case, the
plaintiffs had been in settled possession since at least
October/November 1999 and were deriving benefits from the
property, which establishes accomplished possession to the
knowledge of the defendants. It is argued that if the plea of the
defendants that a true owner can dispossess a trespasser is accepted,
the scope of a suit under Section 6 would be impermissibly
expanded into adjudication of title, which is not contemplated by
law.
It is also submitted that the defendants have failed to produce any
registered or stamped document, such as a sale deed, gift deed, or
conveyance deed, to establish their ownership. It is further urged
that the defendants have neither entered the witness box nor led any
evidence, and therefore, their pleadings cannot be read against the
plaintiffs except as admissions, and that too without prejudice. It is
also pointed out that a statement in the written statement to the
effect that payments were made to the society on behalf of
defendant No. 1 amounts to an admission that such payments were
not made by defendant No. 1 herself, thereby supporting the
plaintiffs’ possession and enjoyment of the property.
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Reliance is further placed upon the Local Commissioner’s report
(PW-12) dated 15.04.1998, which records that the plaintiff opened
the locked premises, showed all the rooms, and thereafter locked the
premises again, thereby establishing possession at that point of time.
Reference is also made to the testimony of PW-6 regarding MTNL
telephone connection No. 22791140 in the name of plaintiff No. 1;
PW-20, who proved installation of gates at the instance of plaintiff
No. 1 in 1988; PW-22, who proved certain documents; and PW-19,
who proved dispossession on 03.03.2001. It is further pointed out
that in cross-examination dated 13.12.2008, a suggestion was put on
behalf of defendant No. 3 that the plaintiffs were never in
possession, which, according to the submission, itself reinforces the
plaintiffs’ case.
It is also submitted that defendant No. 2, who was admittedly
inducted as a tenant by the plaintiffs, did not file any written
statement and remained ex parte throughout, and therefore, there is
no rebuttal to the plaintiffs’ evidence, entitling them to a decree of
possession against defendant No. 2. It is further contended that
defendant No. 3 has, by issuing a “No Dues Certificate,” acted in the
capacity of or stepped into the shoes of defendant No. 2, thereby
further supporting the plaintiffs’ case.
Further submissions have been made invoking the principle that
procedure is the handmaid of justice and that courts are required to
do real and substantial justice (ex debito justitiae). It is urged that
the Court, being the temple of justice, ought not to remain a mute
spectator to injustice, particularly in the facts where an elderly lady
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was allegedly dispossessed from her own house and died seeking
justice. It is also submitted that to arrive at the truth is the ultimate
objective of the Court and that delivering justice is not merely a
sovereign function but a solemn duty.
Reference is also made to Section 116 of the Evidence Act relating
to estoppel of tenants and licensees, to contend that a tenant cannot
deny the title of the landlord at the inception of tenancy. It is further
pointed out that defendant No. 3, in para 19 of her written statement,
has taken inconsistent stands regarding ownership, including a plea
of benami, which itself is stated to be legally unsustainable. It is also
submitted that under Order XIV Rule 5(2) of the Code of Civil
Procedure, the Court has the power to strike out wrongly framed
issues at any stage before passing of the decree.
It is further contended, relying upon the submissions attributed to
defendant No. 3, that even as per her own case, the tenants were
inducted by the plaintiffs and possession was taken over thereafter,
which itself establishes prior possession of the plaintiffs. It is also
pointed out that defendant No. 1 had handed over keys of the
disputed property to plaintiff No. 2, thereby further supporting the
plaintiffs’ possession.
He also relied upon the judgments in Mahmoed Sharif Rangawala v.
Amibai Allabux Rangawala & Anr., AIR 1984 Guj 90, and Baini
Prasad (D) through LRs v. Durga Devi, (2011) 6 SCC 555.
He accordingly prayed that both the suits be decreed in his favour.
Arguments on behalf of Dipali (One of the LRs of the
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plaintiff):
The written submissions filed on behalf of Ms. Dipali, one of
the legal representatives of Plaintiff No. 1, have been perused. It is
stated therein that the plaintiffs were in settled possession of Flat
No. 214, Supreme Enclave, Mayur Vihar, Delhi, and such
possession stands established through consistent and corroborative
documentary and oral evidence. Reliance is placed upon the Local
Commissioner’s report dated 15.04.1998 in Suit No. 149/1998,
which records that the lock of the main door of the suit property was
opened by Plaintiff No. 1, thereby evidencing his possession. It is
further stated that the telephone bills pertaining to connection
installed at the suit property in the name of Plaintiff No. 1, and paid
by him till the date of dispossession, demonstrate his continuous and
exclusive occupation of the premises. The plaintiffs are also stated
to have produced receipts showing payment of construction costs,
land share, membership fees, ground rent, maintenance and other
charges, which, according to the submissions, indicate proprietary
possession and beneficial ownership.
It is further stated that the plaintiffs had exercised rights over the
property by leasing it out to third parties, including Mr. N.K.P.
Sinha in the year 1995 and Defendant No. 2, Neeraj Shekhar, vide
lease agreement dated 24.12.1999. The possession letter dated
28.02.2001 issued by Defendant No. 2 is relied upon as an
acknowledgment of the plaintiffs’ possessory rights, it being
contended that in view of the principle of tenancy estoppel, the
licensee cannot deny the title or possession of the licensors.
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Reference is also made to the police complaint dated 04.03.2001 and
subsequent correspondence dated 20.03.2001, which are stated to be
contemporaneous evidence corroborating the case of forcible
dispossession. The orders passed in connected proceedings,
including the order dated 12.09.2001 recording that Defendant No. 2
vacated the premises in favour of Defendant Nos. 1 and 3, are also
relied upon in support of the plaintiffs’ case.
It is further submitted that none of the defendants entered the
witness box or led any evidence, and their defence rests solely upon
their written statements. It is contended that such failure attracts an
adverse inference under Section 114 of the Indian Evidence Act, as
laid down in Vidhyadhar v. Manikrao and Gopal Krishnaji Ketkar v.
Mohamed Haji Latif. It is also submitted that the denials in the
written statements are evasive and, in view of the law laid down in
Badat & Co. v. East India Trading Co., are liable to be treated as
admissions. Accordingly, it is urged that the written statements of
Defendant Nos. 1 and 3 cannot be treated as evidence in their favour
and can only be read as admissions against them.
The submissions further rely upon an admission made by Defendant
Nos. 1 and 3 in their written statement to the effect that all payments
were made to the society on behalf of Defendant No. 1. It is
contended that this admission establishes that Defendant No. 1 did
not pay the consideration from her own funds and was merely a
name-lender, while the payments were in fact made by the plaintiffs.
Reliance is placed upon the judgments in Raghunath Prasad Sahu v.
Sarkar and Bharat Singh v. Bhagirathi to contend that such
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admissions are substantive and binding.
It is further stated that the arrangement whereby the property was
purchased in the name of Defendant No. 1 out of funds provided by
Plaintiff No. 2 gives rise to a resulting trust in favour of the
plaintiffs. Reference is made to Section 82 of the Transfer of
Property Act and the decision in Thakur Bhim Singh v. Thakur Kan
Singh to submit that where consideration is paid by one person and
the property stands in the name of another, a presumption of trust
arises in favour of the person who provided the consideration. It is
contended that the evidence on record, coupled with the admissions
of the defendants, establishes such a resulting trust in favour of the
plaintiffs.
On the basis of the aforesaid written submissions, it is prayed that
the suit be decreed in favour of the plaintiffs with costs.
On behalf of Ms. Deepali, one of the legal representatives of the
plaintiff, written submissions have been filed to the effect that the
present suit under Section 6 of the Specific Relief Act, 1963 is
maintainable as the provision provides a speedy and efficacious
summary remedy for restoration of possession to a person who has
been forcibly dispossessed, irrespective of questions of title. It is
submitted that the foundation of the provision is that no person,
however good his title may be, can take law into his own hands to
dispossess another, and the principle “in pari causa potior est
conditio possidentis” applies, meaning thereby that as between two
parties with equal claims, the one in possession has the better right.
The scope of the provision is confined to restoration of possession
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without entering into complex questions of title.
It is further submitted that for maintaining a suit under Section 6 of
the Act, the plaintiff is required to establish three essential
ingredients, namely, (i) settled possession of the immovable
property, (ii) dispossession without consent and otherwise than in
due course of law, and (iii) institution of the suit within six months
from the date of such dispossession. It is contended that in the
present case all these ingredients stand conclusively established
through oral and documentary evidence, Local Commissioner’s
reports, court orders, and admissions of the defendants.
With regard to settled possession, it is submitted that the concept of
“settled possession” has been authoritatively explained by the
Hon’ble Supreme Court in Poonam Ram v. Moti Ram, (2019) 11
SCC 309, wherein it has been held that settled possession must be
sufficiently long, acquiesced to by the true owner, and not casual or
transient. It is submitted that the plaintiffs were in uninterrupted,
open, and exclusive possession of the suit property for more than 12
years from the time of construction till 03.03.2001, thereby fully
satisfying the test of settled possession.
Reliance is also placed upon Nair Service Society Ltd. v. K.C.
Alexander, (1968) 3 SCR 163, to contend that possession alone is
sufficient to sustain an action for recovery, and even a person
without title but in settled possession can protect such possession
against all except the true owner with better title. Further reliance is
placed upon Rame Gowda (D) by LRs v. M. Varadappa Naidu (D)
by LRs, (2004) 1 SCC 769, to submit that even a trespasser in
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settled possession can maintain a suit for recovery of possession if
dispossessed otherwise than in due course of law, and that the true
owner must take recourse to law.
It is further submitted that the settled possession of the plaintiffs is
established through cogent documentary and oral evidence.
Reference is made to the Local Commissioner’s report dated
15.04.1998 in Suit No. 149/1998, wherein it was recorded that the
plaintiff opened the locked premises and showed all rooms, which
constitutes reliable evidence of possession. Reliance is also placed
upon telephone bills in the name of plaintiff No. 1 at the suit
property address, evidencing actual occupation. Further, numerous
receipts have been produced showing payment of construction costs,
land share money, membership fees, maintenance charges, and other
dues, demonstrating possession and beneficial ownership. It is also
submitted that lease/licence agreements executed by the plaintiffs in
1995 and thereafter with defendant No. 2 clearly establish exercise
of possession and ownership rights.
It is further pointed out that a possession letter dated 28.02.2001
issued by defendant No. 2, just days before dispossession,
acknowledges the plaintiffs’ superior possessory rights. Immediate
police complaint dated 03.03.2001 and subsequent correspondence
further corroborate the plaintiffs’ case of forcible dispossession.
Orders passed in connected proceedings, including order dated
12.09.2001, also support the plaintiffs’ version and the
circumstances of dispossession.
With regard to illegal dispossession, it is submitted that on
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03.03.2001 the defendants, in furtherance of a conspiracy, forcibly
broke open the lock of the suit property, changed locks, and
prevented the plaintiffs from entering the premises, without consent
and without any authority of law. It is contended that no notice was
issued, no proceedings were initiated, and no court order was
obtained, and therefore the dispossession was entirely illegal and
contrary to law. Reliance is placed upon Krishna Ram Mahale (D)
by LRs v. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097, and Lallu
Yeshwant Singh v. Rao Jagdish Singh , AIR 1968 SC 620, to submit
that even a true owner cannot dispossess a person in settled
possession without recourse to law.
It is further submitted that the involvement of locksmiths,
carpenters, and other persons in breaking and replacing locks clearly
demonstrates a premeditated and organised act, attracting the
principles of conspiracy and joint liability.
It is also submitted that the suit has been filed within the prescribed
period of six months, as the cause of action arose on 03.03.2001 and
the suit was instituted on 01.07.2001, and therefore there is no bar of
limitation.
It is further contended that none of the defendants entered the
witness box, nor led any evidence, nor subjected themselves to
cross-examination, and therefore an adverse inference is liable to be
drawn under Section 114 of the Evidence Act. Reliance is placed
upon Vidhyadhar v. Manikrao, AIR 1999 SC 1441, Kishore Khetar
v. Mohamed Haji Latif, AIR 1968 SC 1413, and Badat & Co. v.
East India Trading Co., AIR 1964 SC 538, to submit that failure to
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enter the witness box and prove pleadings renders the defence
devoid of evidentiary value and permits adverse inference against
the defendants.
It is further submitted that the written statements of defendant Nos.
1 and 3 can only be read as admissions against them and not as
evidence in their favour. It is pointed out that the defendants have
made a crucial admission that payments were made to the society on
behalf of defendant No. 1, which establishes that the purchase
consideration was paid by the plaintiffs and that defendant No. 1
was merely a name lender. Reliance is placed upon Section 17 read
with Section 21 of the Evidence Act and the judgments in Rangnath
Prasad Sahu v. Smt. Sarkar, AIR 1932 PC 25 and Bharat Singh v.
Bhagirathi, AIR 1966 SC 405, to submit that admissions are
substantive evidence and bind the maker.
It is further submitted that the facts give rise to a resulting trust in
favour of plaintiff No. 2, as the property was purchased in the name
of defendant No. 1 using funds provided by the plaintiffs. Reliance
is placed upon Section 82 of the Transfer of Property Act and the
judgment in Thakur Bhim Singh v. Thakur Kan Singh, (1980) 3
SCC 72, to submit that where consideration is paid by one person
and property stands in the name of another, a presumption of
resulting trust arises.
It is also submitted that defendant No. 2, Neeraj Shekhar, did not
appear before the Court, did not file a written statement, and was
proceeded ex parte, and therefore the plaintiffs’ case against him
remains unrebutted. The lease agreement dated 24.12.1999
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establishes that he was a licensee under the plaintiffs, and under
Section 116 of the Transfer of Property Act, he is estopped from
denying their title. The possession letter dated 28.02.2001 and
subsequent order dated 12.09.2001 further confirm that he acted in
collusion with defendant Nos. 1 and 3 in dispossessing the plaintiffs.
It is further submitted that the plaintiffs are also entitled to mesne
profits, as the defendants have been in wrongful possession since
03.03.2001. Reliance is placed upon Section 2(12) of the Code of
Civil Procedure to define mesne profits, and it is contended that the
plaintiffs are entitled to such profits from the date of dispossession
till restoration of possession, along with interest @ 12% per annum.
It is also submitted that a separate suit for recovery of licence fees,
electricity and maintenance charges, penalty, and mesne profits,
being CS No. 2985/2016, is maintainable independently, as held by
the Hon’ble Supreme Court in Bharat Petroleum Corporation Ltd. v.
ATM Constructions Pvt. Ltd., (2025) Live Law (SC) 1031.
It is further submitted that the orders and documents in connected
proceedings, including order dated 12.09.2001 and contempt
proceedings, clearly establish collusion between the defendants and
corroborate the plaintiffs’ case of illegal dispossession. The affidavit
of defendant No. 1 dated 05.05.2003 in connected proceedings is
also relied upon as corroborative evidence under Section 17 of the
Evidence Act.
In view of the aforesaid, it is submitted that the plaintiffs have
conclusively proved all the ingredients of their case through
consistent, cogent, and unrebutted evidence, while the defendants
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have failed to lead any evidence and have not entered the witness
box, rendering their defence unsubstantiated. The admissions in
their written statements further strengthen the plaintiffs’ case. It is,
therefore, prayed that both CS No. 2984/2016 and CS No.
2985/2016 be decreed in favour of the plaintiffs with costs,
possession of the suit property be restored, and mesne profits,
licence fees, damages, and interest @ 12% per annum be awarded. It
is further prayed that the present written submissions be read as part
of the record without repetition for the sake of brevity.
Defendant’s Arguments (Defendant no.3):
It is submitted that the plaintiffs were fully aware of the
earlier litigation between Defendant No. 1 and Defendant No. 3,
being CS(OS) No. 1817/2001 (subsequently renumbered as CS(OS)
No. 1531/2008), and thereafter CS No. 2985/2016. During the
pendency of the said proceedings, by way of an interim arrangement
vide order dated 21.09.2006, Defendant No. 3 had been paying
monthly charges of ₹6,500/- to Defendant No. 1 with effect from
01.09.2006 till the year 2018, when the said suit was withdrawn by
Defendant No. 3 with a view to arrive at an out-of-court settlement
with Defendant No. 1.
It is contended that the suit was initially instituted by Plaintiff No. 1
(brother) and Plaintiff No. 2 (mother). During the pendency of the
proceedings, Plaintiff No. 2 expired and one Mukul (grandson)
sought impleadment as her legal representative on the basis of an
alleged Will dated 14.07.2007. It is argued that Mukul is not a
Class-I heir and thus does not fall within the general rule of
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succession applicable to female Hindus under Section 15 of the
Hindu Succession Act, 1956. Consequently, he cannot claim to be a
legal representative in the ordinary course of succession.
It is further submitted that Mukul’s impleadment is conditional upon
proof of the legality and validity of the alleged Will, for which
specific issues were framed by the Court. In the absence of proof of
the Will, the substitution of Mukul as legal representative fails, and
no surviving cause of action remains in favour of Plaintiff No. 2.
The Will is challenged on two principal grounds: firstly, its
execution is doubtful; and secondly, Plaintiff No. 2 was not
competent to execute such a Will as she was never the registered
owner of the suit property nor even a member of the concerned
society. It is pointed out that no suit had ever been filed by her
seeking declaration of ownership. Therefore, she could not have
bequeathed rights in property which she herself did not own.
It is further argued that the circumstances surrounding the alleged
Will render it highly suspicious. The plaintiffs themselves admit that
the Will was not prepared in their presence and that it surfaced only
after the death of the mother, when it was allegedly handed over in a
sealed envelope. The mother never disclosed the existence of such a
Will during her lifetime.
The Will is unregistered and bears signatures appearing at random
places within the document, suggesting manipulation. Though four
attesting witnesses are named, one of them was not examined, while
the remaining witnesses (PW18, PW17 and PW21) gave
inconsistent and contradictory statements. Their affidavits show
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identical language and corrections, indicating that they were not
independently prepared.
It is pointed out that the witnesses gave conflicting versions
regarding the custody of the Will after execution and admitted lack
of knowledge about its preparation. Their testimony also reveals
inconsistencies regarding the use of a typewriter, especially when
Plaintiff No. 1 himself admitted that no such machine existed at his
residence or office. These contradictions render the execution of the
Will doubtful and unreliable.
In view of the cumulative inconsistencies, it is submitted that the
alleged Will does not inspire confidence and appears to be a
fabricated document. It is further stated that the same Will is also
the subject matter of dispute in another suit concerning property at
A-9, Neeti Bagh.
It is argued that although the plaintiffs initially filed a suit under
Section 6 of the Specific Relief Act, they simultaneously claimed
title and ownership in the plaint. Evidence was also led to establish
ownership, including alleged payments made to the society. This, it
is submitted, changes the nature of the suit from a summary suit
under Section 6 to a title suit under Section 5 of the Act.
Reliance is placed on Halim Yasin vs. Mustakim Alaf Din (AIR
1942 Peshawar 8), wherein it was held that where a plaintiff bases
his case on title, relief under Section 6 (earlier Section 9) cannot be
granted. Further reliance is placed on Nagar Palika, Jind vs. Jagat
Singh (1995 (3) SCC 426), wherein the Hon’ble Supreme Court
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held that once title is asserted, the suit cannot be treated as one
based purely on possession.
It is submitted that the plaintiffs, having claimed ownership, cannot
seek relief under Section 6 without proving title. Additionally, by
not claiming consequential reliefs such as mesne profits in the
earlier suit, the subsequent suit is barred under Order II Rule 2 CPC.
The declaratory relief sought is also barred under Section 34 of the
Specific Relief Act for want of consequential relief.
It is contended that Defendant No. 1 is admittedly the recorded
member of the society and all payments towards the suit property
were made in her name. Therefore, any claim by the plaintiffs
asserting ownership is barred under Sections 3 and 4 of the Benami
Transactions (Prohibition) Act, 1988.
The plaintiffs have failed to produce any evidence to rebut the
statutory presumption under the Act. Their own stand in earlier
proceedings indicates that there was merely a family arrangement
for reimbursement of money, which negates any claim of ownership
and at best gives rise to a claim for recovery of money, which too
was never pursued.
It is submitted that the plaintiffs have failed to implead the
concerned society as a party, despite claiming rights in respect of a
property allotted by the society in the name of Defendant No. 1. The
suit is therefore bad for non-joinder of a necessary party.
It is argued that Plaintiff No. 2 was initially arrayed as a defendant
and subsequently transposed as a plaintiff without leave of the
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Court. She had also filed an affidavit seeking withdrawal of one of
the suits. In view of this, it is submitted that the suits were not
properly signed and instituted and do not survive.
It is submitted that the burden to prove ownership and possession
was on the plaintiffs, which they have failed to discharge. The
witnesses produced by them, including officials from banks and
other institutions, did not support their case and admitted absence of
records regarding payments. Even the receipts produced were in the
name of Defendant No. 1.
The plaintiffs have failed to establish that they were ever members
of the society or that possession was handed over to them. No
documentary evidence such as allotment letter, possession letter,
electricity bills, house tax records, or identification documents
showing residence at the suit property has been produced.
The plea of possession since 1988 is contradicted by evidence on
record, including a Local Commissioner’s report showing the
property to be vacant. The plaintiffs’ own admissions and prior
litigation records demonstrate inconsistent and contradictory stands
regarding ownership and possession.
Witness testimonies regarding possession, tenancy, and alleged
dispossession are riddled with contradictions. Key witnesses failed
to produce supporting documents, gave inconsistent statements, or
admitted lack of knowledge. The evidence regarding keys, surrender
of possession, and alleged dispossession is unreliable and does not
inspire confidence.
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Even the witnesses produced to prove possession (including PW19
and PW20) failed to substantiate the plaintiffs’ case and were found
unreliable. Their statements were inconsistent, unsupported by
documents, and contrary to earlier records.
It is submitted that a trespasser cannot maintain a suit for possession
against the true owner unless he proves settled possession. Reliance
is placed on Puran Singh vs. State of Punjab (1975 (4) SCC 518)
and Rame Gowda vs. M. Varadappa Naidu (2004 (1) SCC 769),
wherein it has been held that possession must be settled, continuous,
and to the knowledge of the true owner.
In the present case, the plaintiffs have failed to establish settled
possession. They have not proved how they came into possession,
nor that such possession was continuous or acquiesced in by the true
owner.
The earlier litigation and evidence show that the property was lying
vacant and that tenancy, if any, was created by or on behalf of
Defendant No. 1. The plaintiffs’ claim of dispossession is
unsupported and contradicted by the record.
He also placed reliance on the following judgments: Halim Yasin
vs. Mustakim Alaf Din, AIR 1942 Peshawar 8; K.K. Verma vs.
Naraindas C. Malkani, ILR (1954) Bom 950; Lallu Yeshwant Singh
vs. Rao Jagdish Singh, AIR 1968 SC 620; Munshi Ram vs. Delhi
Administration, AIR 1968 SC 702; Puran Singh vs. State of Punjab,
AIR 1975 SC 1674; Ram Rattan vs. State of U.P., AIR 1977 SC
619; Krishna Ram Mahale vs. Shobha Venkat Rao , AIR 1989 SC
2097; Bacharam Dhondi Katkar vs. Laxman Anandrao Katkar
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(Bombay High Court); Nagar Palika vs. Jagat Singh, (1995) 3 SCC
426; Rame Gowda vs. M. Varadappa Naidu, (2004) 1 SCC 769;
Deep Chand vs. Kulanand Lakhera (Delhi High Court); Shammi
Nagpal vs. Sudhir Nagpal (Bombay High Court); Mahipal Singh vs.
State of Haryana; Rajiv Imam vs. ABP Private Limited & Ors.
(Calcutta High Court); Rohit Cargo Movers vs. CESC Limited &
Ors. (Calcutta High Court); and Susheela Devi vs. Ram Charan
Yadav.
In view of the above submissions, it is contended that the plaintiffs
have failed to prove the validity of the Will, their ownership, or their
prior or settled possession of the suit property. The evidence led by
them is inconsistent, unreliable, and insufficient. The suit is barred
by law on multiple grounds, including the provisions of the Specific
Relief Act, the Benami Transactions Act, and the CPC. The entire
case set up by the plaintiffs is false and unsupported by credible
evidence.
9. APPRECIATIONS OF ARGUMENTS AND RECORD:-
I have carefully listened to and considered the arguments
presented by all parties, thoroughly reviewed the records, and taken
into account the relevant laws and precedents.
10. ANALYSIS AND ISSUE-WISE FINDINGS:-
(The issues are not being dealt with serially for the sake
of effective and comprehensive adjudication):
Issue no. 6:
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The present suit seeks declaration of ownership in respect of Flat
No. 214, Supreme Enclave. Mayur Vihar Delhi along with recovery
of damages, licence fees, electricity dues, maintenance charges and
mesne profits.
In the opening portion of the plaint (Para no. 2), it is pleaded that the
flat was purchased in the name of Defendant No.1 because the
Society was meant for advocates only and Plaintiff Nos. 1 and 2
were not enrolled advocates at the relevant time. It is further pleaded
that it was decided that Defendant No.1 would later transfer the flat
in favour of Plaintiff No. 1 and/or Plaintiff No.2. However, in the
very same set of pleadings it is asserted that the entire money for the
purchase of the flat was paid by Plaintiff No.2 from the bank
accounts of Plaintiff No.2 herself. It is further stated in the
evidentiary affidavit of PW-1/plaintiff no. 1 that the entry of
Defendant No. 1 in the records of the society is merely sham, and
that Plaintiff No. 2 has been the real owner since inception, having
paid the entire consideration.
The plaintiffs’ case, when examined holistically, suffers not merely
from evidentiary inconsistencies but from structural legal
incompatibility. Each version advanced by the plaintiffs neutralizes
the other and independently attracts a legal bar. The Court finds that
whichever formulation of ownership the plaintiffs adopt, it results in
a legal impediment fatal to the suit.
Firstly, in certain portions of the evidentiary affidavit, Plaintiff No.
1 asserts that the entry of Defendant No. 1 in the records of theCS No. 2984/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 56 of 70
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Society is a “sham,” and that Plaintiff No. 2 has been the real owner
since inception, having paid the entire consideration. However, in
the plaint (in paragraph no. 16 of the plaint) particularly in the
extract of the letter dated 20.03.2001 reproduced therein, it is clearly
stated that it was agreed that Defendant No. 1, being an advocate
eligible for allotment of the flat, would transfer the flat in favour of
the complainant upon his becoming an advocate or as and when
desired. This latter plea necessarily presupposes that Defendant
No.1 was the legal allottee and holder of title, and that ownership
was to pass by a future act of transfer. The two positions are
mutually destructive. If the entry in Defendant No.1’s name was
sham from inception and she had no real title, there was nothing for
her to “transfer.” Conversely, if she was to transfer the flat at a later
stage, then legal title admittedly vested in her and required
conveyance. The plaintiffs cannot simultaneously assert that title
never vested in Defendant No.1 and also that she was obliged to
convey title in future.
Secondly, if the plaintiffs’ own case is that Defendant No.1 was to
transfer the flat pursuant to an agreement or understanding, the
proper remedy in law would be a suit for specific performance of
that agreement. A declaratory suit under Section 34 of the Specific
Relief Act presupposes the existence of a present legal right or
character. The plaintiffs themselves admit that the property stands in
the name of Defendant No. 1 and that no transfer deed or
conveyance was ever executed in favour of Plaintiff No.2. In such
circumstances, ownership could not vest in Plaintiff No. 2 merely by
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the alleged payment of consideration. Title in immovable property
does not pass by intention alone but by legally recognized
conveyance. If an agreement existed requiring Defendant No.1 to
transfer the property, the plaintiffs were required to plead and prove
such agreement, establish readiness and willingness in terms of
Section 16(c) of the Specific Relief Act, and seek a decree of
specific performance within the prescribed period of limitation. By
styling the suit as one for declaration of ownership, the plaintiffs
have sought to bypass the statutory framework governing
contractual enforcement. Courts do not permit such circumvention
of substantive requirements.
Thirdly, the plaintiffs themselves plead that the Society in question
was meant exclusively for advocates and that allotment was
restricted to persons enrolled as advocates. It is admitted that at the
relevant time Plaintiff Nos 1 and 2 were not enrolled advocates and
therefore the flat was taken in the name of Defendant No.1 who
satisfied the eligibility criteria. If this is so, Plaintiff Nos. 1 and 2
were legally ineligible to hold membership at the time of allotment.
Any private understanding whereby a person ineligible under the
bye-laws seeks to claim ownership through an eligible allottee
would defeat the statutory scheme governing cooperative societies.
Courts cannot enforce an arrangement that has the effect of
circumventing mandatory eligibility conditions contained in bye-
laws. Even assuming consideration proceeded from Plaintiff No.2,
she could not in law have been declared owner unless she satisfied
the eligibility requirements and secured lawful transfer in
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accordance with the Society’s rules. An agreement designed to
bypass such restrictions would be void under Section 23 of the
Indian Contract Act as defeating the provisions of law.
The Hon’ble Apex Court, in the case titled Zoroastrian Co-operative
Housing Society Ltd. v. District Registrar, Co-operative Societies
(Urban) (2005) 5 SCC 632, has affirmed that a co-operative society
may validly restrict its membership through its bye-laws, and that
the rights relating to allotment and transfer are governed by the
society’s bye-laws as well as the provisions of the Act.
If at the date of the allotment the plaintiffs were not enrolled
advocates and the bye-laws explicitly required advocate status at
allotment, the plaintiffs could not have validly become members or
acquired the allotted flat merely by agreement with a third
party/licensee- unless the Society later admitted them by following
the statutory/bye-law procedure and recorded that admission.
Even otherwise, when the plaintiffs’ case is tested on the touchstone
of their own factual averments, it is found to be replete with
contradictions and inherent improbabilities, rendering it
unsustainable.
In the evidentiary affidavit of PW-1/plaintiff no. 1 (middle portion
beginning “However, the plaintiff no.2 purchased..”), it is asserted
that the flat was purchased “for the benefit of plaintiff no.2 herself”
and that entries in the name of Defendant No. 1 are “sham.” This is a
categorical stand.
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However, during cross-examination (dated 28.02.2013), when
confronted with Ex PW-1/D3X1, PW-1 admitted that in earlier
proceedings he had stated that the flat was purchased by his father
and explained this as a “typographical mistake.” This contradiction
is fundamental. Ownership cannot oscillate between father (earlier
pleading), mother (present suit), joint contribution (Para 4 of plaint),
and sham entry theory (Evidential Affidavit/examination-in-chief of
plaintiff no. 1/PW-1). A typographical error cannot explain a
complete substitution of purchaser identity.
Para 4 of the plaint states that “money including construction money
cost of land share money……. to their respective benefits.” This
paragraph clearly indicates joint contribution. Yet earlier portion of
plaint asserts entire money was paid by Plaintiff No. 2. In the
evidentiary affidavit/examination-in-chief of PW-1, in the last line
of paragraph 3 (beginning with ‘The entire money for the purchase
of the flat…’), it is reiterated that the entire amount was paid by
Plaintiff No. 2 from her own bank account.
During cross-examination, PW-1 admitted that he had not paid the
entire sale consideration, that substantial portion was paid by his
mother, and that he does not remember how much he paid. This
contradiction between Para 4 of plaint, affidavit assertion of “entire
money,” and cross-admission materially weakens the financial
foundation of ownership.
Insofar as the contention regarding the alleged admission by
Defendant No. 1 of payment of the consideration amount isCS No. 2984/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 60 of 70
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concerned, there is no unequivocal admission on record. Defendant
No. 1, in her written statement, has merely stated that the amount
was given on her behalf and that the same had been earned by her
during her practice with her father and deposited with her mother.
Even if this contention is accepted, such alleged admission is of no
relevance in the facts and circumstances of the present case,
particularly in view of the aforesaid contradictory averments made
by the plaintiffs regarding the payment.
The mode of entry into the property as described by PW-1 further
raises doubt. He deposed that the flat was lying vacant, that no
permission from society was required, that no possession letter was
executed, that society did not hand over keys, and that he installed
locks himself. Such unilateral entry is inconsistent with lawful
allotment procedure in a cooperative society.
In view of the foregoing discussion, the plaintiff’s claim of
ownership over the property is not tenable. The precedents relied
upon on behalf of the plaintiff are inapplicable to the facts and
circumstances of the present case. Accordingly, Issue No. 6 is
decided against the plaintiffs and in favour of the defendant.
Issue no. 1:
The onus of proving this issue lies upon the plaintiffs. The plaintiffs
are required to establish that the present suit has been instituted
within the prescribed period of limitation.
The primary relief sought in the present case is a declaration of
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ownership with respect to the suit property. As per Article 58 of the
Schedule appended to the Limitation Act, 1963, the prescribed
period of limitation for a suit seeking declaration is three years from
the date when the right to sue first accrues.
In paragraph No. 7 of the plaint, it has been stated that the father of
Plaintiff No. 1 and the husband of Plaintiff No. 2 expired on
25.11.1995, and that after his death, Defendant Nos. 1 and 3 started
asserting their claim over the suit property with ulterior motives.
Paragraph No. 7 of the plaint is reproduced as under:
“7. That the father of plaintiff No.1 and husband of plaintiff
No.2 had expired on 25.11.95. It is after the death of the father
of the plaintiff No.1 and husband of plaintiff No. 2 that the
defendant No.1 and 3 have started their undue claim of flat No.
214, Supreme Enclave, Delhi-91 with ulterior motives.
That defendant No.1 & 3 had never claimed any right in respect
of the flat No. 214, Supreme Enclave during the life time of the
father of the plaintiff No.1 and husband of the plaintiff No.2 or
at any occasion for the last 20 years.”
From a reading of the aforesaid averments, it is apparent that the
cause of action, and consequently the right to sue, first accrued to
the plaintiffs in the year 1995. However, the present suit has been
instituted only in the year 2001. Even otherwise, no specific date or
event has been mentioned or proved on record from which the exact
commencement of the period of limitation can be ascertained.
The onus to prove this issue was upon the plaintiffs, but they have
failed to discharge the said onus. Accordingly, this issue is decided
against the plaintiffs.
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Issue no. 2:
It is clear from the discussion under Issue No. 6 that the plaintiffs
are not entitled to any relief. Even if the applicability of the
Prohibition of Benami Property Transactions Act, 1988 is examined
in light of the plea of the plaintiffs that the suit property was
purchased for Plaintiff No. 2 in the name of Defendant No. 1, the
plaintiffs have failed to establish the same. From the discussion
under Issue No. 6, it is evident that the plaintiff has failed to prove
his ownership. A mere contention regarding payment of
consideration is not sufficient to establish that the property was
purchased for the benefit of Plaintiff No. 2.
Moreover, there are material contradictions in the pleadings and
submissions of the plaintiffs in this regard. As already noted while
deciding Issue No. 6, at some places it has been stated that the entire
payment was made by Plaintiff No. 1 alone, at other places it is
stated that the payment was made by Plaintiff No. 2 alone, and at
some places it is claimed that the payment was made jointly by both
the plaintiffs.
In the absence of any cogent evidence to prove that the property was
purchased for the benefit of Plaintiff No. 2, the question of
applicability of the provisions of the Prohibition of Benami Property
Transactions Act, 1988 does not arise. It has also not been proved
that Defendant No. 1 was holding the property for the benefit of
Plaintiff No. 1.
Accordingly, this issue stands decided.
Issue no. 3:
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Admittedly, the plaintiffs are not in possession of the suit property.
However, there is no specific or express prayer for recovery of
possession in the plaint. Clause B of the prayer merely states that
Plaintiff Nos. 1 and 2 be treated as being in possession from the date
of dispossession till the time they are placed back in possession of
the suit property. The said prayer clause is reproduced as follows:
“b) That the plaintiffs Nos 1 and 2 be treated in possession from
the date of dispossession till the plaintiff Nos. 1 and 2 are placed
back in possession of the Flat No. 214, Supreme Enclave, Mayur
Vihar, Delhi-110091.”
There is no specific prayer for recovery of possession in the present
suit, despite the admitted position that the plaintiffs are not in
possession of the suit property. The proviso appended to Section 34
of the Specific Relief Act, which empowers the Court to grant a
decree of declaration, clearly provides that no Court shall make such
declaration where the plaintiff, being able to seek further relief than
a mere declaration of title, omits to do so.
In the present case, the omission to seek the relief of possession is a
material omission. In the facts and circumstances of the case, the
plaintiffs were required to seek the consequential relief of
possession along with the relief of declaration. In view of the
proviso to Section 34 of the Specific Relief Act, such omission
disentitles the plaintiffs even from the relief of declaration.
The mere pendency of a separate suit under Section 6 of the Specific
Relief Act does not come to the aid of the plaintiffs and does not
cure the defect of non-compliance with the proviso to Section 34 of
the Specific Relief Act.
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In view of the foregoing discussion, the present issue stands decided
against the plaintiffs.
Issue no. 4:
There is no applicability of Section 10 CPC (the mention of Order
10 in the issues appears to be inadvertent and is treated as a
reference to Section 10 CPC) in the facts and circumstances of the
present case. The earlier suit was instituted under Section 6 of the
Specific Relief Act. The matter in issue in a suit under Section 6 of
the Specific Relief Act cannot be the same as in the present suit, as
proceedings under Section 6 are of a summary nature and do not
finally determine the question of ownership. Such proceedings are
intended only to provide a remedy against wrongful dispossession.
Moreover, Section 10 CPC merely provides for the stay of
proceedings in a subsequently instituted suit where the matter in
issue is directly and substantially the same as in a previously
instituted suit. It does not bar the institution or entertainment of a
subsequent suit. In any case, at this final stage of the proceedings,
Section 10 CPC has no application.
Further, Order II Rule 2 CPC is also not attracted in the present
case. The earlier suit was filed under Section 6 of the Specific Relief
Act, in which only limited relief relating to restoration of possession
can be claimed. In the present suit, the principal relief sought is a
declaration of ownership, which could not have been claimed in a
suit under Section 6 of the Specific Relief Act.
In view of the above discussion, this issue is decided against the
defendants.
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Issue no. 5:
It has been argued on behalf of the defendant that initially the
mother was arrayed as Defendant No. 4, but subsequently her name
was struck off and she was impleaded as Plaintiff No. 2. It has
further been contended that the mother had filed an affidavit seeking
withdrawal of the suit.
The record shows that the plaint bears the signatures of Smt. Prabha
Devi Gupta as Plaintiff No. 2 at the appropriate places, and her
name has also been mentioned as Plaintiff No. 2 on the first page of
the plaint. No doubt, certain changes appear in the amended memo
of parties with regard to Smt. Prabha Devi Gupta being shown as
Plaintiff No. 2/Defendant No. 4. However, merely on this basis it
cannot be held that the suit has not been properly signed or
instituted.
As regards the contention that she had filed an affidavit seeking
withdrawal of the suit during the pendency of the proceedings, it is
noted that if she intended to withdraw the suit, she was required to
appear before the Court and record her statement to that effect. The
mere filing of an affidavit does not amount to withdrawal of the suit.
The affidavit has been disputed on behalf of the plaintiff. In such
circumstances, it is necessary for Plaintiff No. 2 to appear before the
Court and either make a statement regarding the withdrawal of the
suit or verify the contents and presentation of the affidavit.
In view of the foregoing discussion, this issue is decided against the
defendants.
Issue no. 7:
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The burden to prove the Will dated 14.07.2007 was upon the
plaintiff/Sh. Mukul. In order to prove the said Will, three attesting
witnesses, namely Sh. Moinuddin Siddique, Sh. Praveen Kumar
Gupta, and Sh. Devender Sain, were examined.
Under Section 63 of the Indian Succession Act and Section 68 of the
Indian Evidence Act, the propounder of a Will must prove that the
Will was duly executed by the testatrix and attested by at least two
witnesses in her presence. The propounder must also dispel any
suspicious circumstances surrounding the execution of the Will.
After carefully examining the testimonies of the attesting witnesses
and the document of the Will, this Court finds that the evidence led
by the plaintiff suffers from several material contradictions and
improbabilities which create serious doubt about the genuineness of
the alleged Will.
One of the contradictions pertains to the question as to who received
the Will after its execution.
In the affidavits which were ultimately tendered in evidence by the
witnesses, it has been stated that after execution of the Will, the
testatrix handed over the document to Sh. M. Siddique, Advocate.
However, it has come on record during cross-examination that
earlier affidavits filed by the witnesses contained an entirely
different version. In those earlier affidavits, it had been mentioned
that the Will was handed over to Ms. Anshu, the wife of plaintiff
No.1.
Both witnesses (Moinuddin Siddique and Praveen Kumar Gupta)
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admitted this discrepancy during cross-examination. Moinuddin
Siddique attempted to explain the contradiction by stating that the
earlier affidavit contained a typographical error and that the Will
had, in fact, been handed over to him. However, this explanation is
not convincing. No express explanation has been furnished on
behalf of Mr. Praveen Kumar Gupta in this regard. The
contradiction does not pertain to a minor typographical error but
relates to a substantive and material fact concerning the custody of
the Will immediately after its execution. It is highly improbable that
multiple affidavits would contain the same alleged typographical
error with respect to such an important fact.
This inconsistency seriously undermines the credibility of the
witnesses and creates doubt regarding the true circumstances of the
alleged execution of the Will.
The testimonies of the three attesting witnesses are also inconsistent
regarding who was present at the time of execution and the sequence
in which the witnesses arrived.
Devender Sain stated that when he reached the house of the testatrix,
Sh. Moinudding Siddique was already present, and thereafter
Praveen Kumar Gupta and Mahip Naik arrived. He further stated
that during his stay no other person entered or left the room.
On the other hand, Moinuddin Siddique stated that he met Mahip
Nayak, Dr. Arun Gupta and Devender Sain at the gate and that all of
them entered the room together where the testatrix was sitting.
Praveen Kumar Gupta, however, gave yet another version.
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According to him, two persons were already present when he
arrived, namely Mahip Nayak and Devender Sain, and Moinuddin
Siddique arrived thereafter.
Thus, each witness has given a different version regarding the
arrival and presence of the other witnesses. These contradictions go
to the root of the matter and made the execution of WILL by
testatrix doubtful. All the witnesses stated that no family member of
the plaintiff was present at the time of execution. However, the Will
allegedly concerns family property, and the testatrix allegedly called
the witnesses specifically to execute the Will.
The complete absence of family members during such an important
event appears unusual and creates doubt about the circumstances of
execution.
All three witnesses claim that the testatrix herself typed the Will on
a portable typewriter, and thereafter signed it in their presence.
However, the Will document itself gives a different impression. The
layout and alignment of the typed text suggest that the signatures
appear in between the typed contents, and the typing appears to have
been adjusted around the signatures. This creates a reasonable
suspicion that the signatures may have been obtained earlier on
blank sheets, and the contents of the Will were typed later so as to
fit around the signatures.
Such a circumstance casts doubt on the authenticity of the
document, particularly when the witnesses themselves have given
inconsistent versions regarding the events surrounding the
execution.
CS No. 2984/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 69 of 70
Digitally signed
VIKAS by VIKAS GARG
Date:
GARG 2026.05.07
16:57:45 +0530
In the present case, the peculiar positioning of the signature of the
testatrix–being surrounded by typed text on three sides–creates a
strong impression that the contents of the document may have been
typed around the signature rather than the signature being appended
after the typing of the document. This circumstance, coupled with
the contradictions in the testimonies of the attesting witnesses and
inconsistencies between their earlier affidavits and the affidavits
tendered in evidence, creates serious doubt regarding the
genuineness of the alleged Will. The plaintiff has failed to furnish
any satisfactory explanation for these suspicious circumstances.
Consequently, the Court cannot safely rely upon the alleged Will.
In view of the above, Issue No. 7 stands decided against the
plaintiffs.
11. RELIEF:-
In view of above discussion, the suit of the plaintiffs is hereby
dismissed.
12. The decree-sheet be prepared accordingly.
13. The file be consigned to record after due compliance.
Digitally signed Pronounced in the open court VIKAS byDate:VIKAS GARG on 7th May, 2026 GARG 2026.05.07 16:57:53 +0530 (Vikas Garg) District Judge-05 /EAST KKD, Delhi- 07.05.2026 CS No. 2984/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 70 of 70
