Delhi District Court
Piyush And Ors vs Manisha Gupta And Ors on 7 May, 2026
IIN THE COURT OF VIKAS GARG, DISTRICT
JUDGE-05, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI.
CS No. 2985/2016
CNR No. DLET01-008597-2016
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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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 SECTION 6 OF SPECIFIC RELIEF ACT AND
DECLARATION
JUDGMENT
1. This judgment pertains to a suit instituted under Section 6 of
the Specific Relief Act, along with a prayer for declaration.
2. CASE OF THE PLAINTIFFS AS PER PLAINT :-
Briefly, the essential facts and averments required for a fair
adjudication of the present suit, as presented in the plaint, are as
follows:
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Defendant Nos. 1 and 3 are sisters of Plaintiff No. 1 and
daughters of Plaintiff No. 2. Defendant No. 1 resides in Bhopal due
to her husband’s long-standing service in Madhya Pradesh, while
Defendant No. 3 resides in Sahibabad, Ghaziabad. Defendant No. 2
was earlier a licensee under an agreement dated 25.12.1999 and
vacated the premises on 28.02.2001.
Late Shri M.S. Gupta, father of Plaintiff No. 1 and husband of
Plaintiff No. 2, along with Plaintiff Nos. 1 and 2, intended to
purchase a flat in the Supreme Co-operative Group Housing Society
around 1980 for the benefit of Plaintiff No. 2. Since the society
restricted allotment to advocates who did not own residential
property in Delhi, and the plaintiffs were not advocates at that time,
the flat was purchased in the name of Defendant No. 1, who was
eligible. It was mutually understood that Defendant No. 1 would
later transfer the flat to Plaintiff Nos. 1 and/or 2. The entire
consideration for Flat No. 214, Supreme Enclave, was paid by
Plaintiff No. 2 from her own bank accounts and life savings for her
benefit. Plaintiff Nos. 1 and 2 remained in continuous, settled
possession of the flat from inception.
Plaintiff Nos. 1 and 2 were in exclusive physical possession of the
flat for over 12 years prior to 03.03.2001. They paid all amounts
relating to the flat, including construction cost, land share,
membership fees, ground rent, maintenance, and other dues, through
their bank accounts. They reserve the right to produce further proof
of such payments. The father of Plaintiff No. 1 was a practicing
advocate and member of the Supreme Court Bar Association, and
Defendant No. 1 was enrolled in the society as an unmarriedCS No. 2985/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 3 of 68
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daughter. After her marriage and relocation, she neither contributed
financially nor exercised any ownership rights. The defendants
never paid any amount towards the property.
The plaintiffs retained legal possession and control of the flat and,
when necessary, licensed portions of it to tenants. In 1995, Plaintiff
No. 1 was authorized to license the flat, and one Shri N.K.P. Sinha
occupied it as a tenant until 31.03.1998, paying rent to the plaintiffs.
After the death of Late Shri M.S. Gupta on 25.11.1995, Defendant
Nos. 1 and 3 began asserting false claims over the flat, though they
had never done so during his lifetime or for many years thereafter.
In 1998, Plaintiff No. 1 filed a suit for injunction against Shri
N.K.P. Sinha, and a Local Commissioner’s report confirmed that the
flat was under the control of the plaintiff. Subsequently, Defendant
No. 2 was granted a limited license in December 1999 for a portion
of the flat but failed to pay beyond one month’s fee. Another
licensee, Shri Jog Singh, was permitted to occupy a separate portion
in January 2000 and vacated it on 03.01.2001, restoring possession
to the plaintiffs. Defendant No. 2 also vacated his portion on
28.02.2001.
Shortly thereafter, Defendant Nos. 1 to 3, along with their
associates, threatened Plaintiff No. 1 with forcible dispossession.
Complaints were made to the police on 02.03.2001. On 03.03.2001,
Plaintiff No. 1 discovered that the locks of the flat had been forcibly
broken and replaced using welding equipment, and the premises had
been illegally occupied. Furniture, household goods, documents,
and cash amounting to approximately Rs. 1.5 lakhs were found
missing. Police officials verified the forced entry, and further
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complaints were lodged on 03.03.2001 and 04.03.2001. The
plaintiffs were thus forcibly and unlawfully dispossessed without
due process.
The plaintiffs continued to pursue remedies by filing complaints
with the police and authorities, including a complaint under Section
145 Cr.P.C. before the SDM. Defendant No. 1 also filed a collusive
suit and obtained an injunction order, which was misused to remove
remaining articles from the flat. In her own pleadings, Defendant
No. 1 acknowledged facts indicating prior possession of the
plaintiff, including allegations that Plaintiff No. 1 had inducted
occupants and derived rental income, thereby implicitly admitting
his control and possession.
The plaintiffs assert that Defendant No. 1 was merely a benami
holder, and the real ownership vested in the plaintiffs, particularly
Plaintiff No. 2, who financed the entire purchase. Even in the
defendant’s own pleadings, it is admitted that the property was
acquired with family funds and that Defendant No. 1 resided outside
Delhi. The plaintiffs deny all contrary allegations made by the
defendants.
The plaintiffs state that they remained in exclusive, lawful
possession of the flat until their illegal dispossession on 03.03.2001.
All dues to the society were paid by them, though receipts were
issued in the name of Defendant No. 1 due to society records.
Plaintiff No. 1 also maintained a telephone connection at the
premises, with bills paid by him. The defendants are liable for
damages, compensation, and mesne profits for wrongful
dispossession and misuse of legal process.
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The plaintiffs pray that this Court may pass a decree of possession
in their favour by restoring possession of Flat No. 214, Supreme
Enclave, Mayur Vihar, Delhi, by dispossessing Defendant Nos. 1 to
3 and their agents; declare that Plaintiff Nos. 1 and 2 were in lawful
possession of the said flat until their dispossession and are entitled
to restoration thereof; and grant any other relief as this Hon’ble
Court may deem just and proper in the facts and circumstances of
the case.
3. CASE OF THE DEFENDANT No. 1 & 3 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 submit that Defendant No. 1 is the lawful
owner of the suit property, i.e., Flat No. 214, Supreme Enclave,
Mayur Vihar, Phase-I, Delhi, having been allotted the same by the
Supreme Cooperative Group Housing Society Ltd. The
membership/share certificate dated 06.04.1992 and possession letter
dated 29.09.1993 (received on 21.12.1995) stand in her name. The
property is assessed to house tax in her name, electricity
connections are in her name, and all payments were made to the
society on her behalf, as evidenced by receipts.
It is contended that the plaintiffs were never in actual physical
possession of the property. Their claims are false and unsupported.
Plaintiff No. 1 had earlier lodged a complaint with the police,
which, after investigation, resulted in a closure report stating that heCS No. 2985/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 6 of 68
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was neither the owner nor ever in possession of the property, nor
were any of his belongings found therein. The society also
confirmed this position.
The defendants further submit that Defendant No. 1, being resident
outside Delhi, had entrusted one set of keys to her mother (Plaintiff
No. 2), while retaining another set herself. The property was let out
in 1995 through Plaintiff No. 2 to one Sh. N.K.P. Sinha. However,
in 1998, Plaintiff No. 1 fraudulently got the premises vacated and
obtained a Local Commissioner’s report, which merely indicated
that the premises were vacant and keys were operated by him. The
said proceedings were not against the defendants and were
ultimately dismissed, along with the status quo order.
It is further submitted that various litigations have arisen due to the
fraudulent conduct of Plaintiff No. 1, including proceedings under
Section 340 Cr.P.C. for perjury, as well as suits concerning other
properties. Plaintiff No. 1 has allegedly threatened the defendants to
execute relinquishment deeds and has attempted to assert false
ownership claims.
The defendants state that Plaintiff No. 1, by deceit, inducted
unauthorized occupants into the property and derived unlawful
gains. Upon discovery, Defendant No. 1 asserted her ownership
rights and took possession of part of the premises, while another
portion was found occupied by Defendant No. 2, who had been
inducted illegally by Plaintiff No. 1. Subsequently, possession was
regularized with the intervention of the society, and Defendant No.
1 secured the premises.
It is also averred that Plaintiff No. 1 made repeated attempts to
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forcibly take possession of the property, which were resisted with
the intervention of the society. Complaints made by him to the
police were found to be false. The defendants maintain that the
plaintiffs have no right, title, or interest in the suit property and that
their claims are contradictory and legally untenable.
The defendants raise several preliminary objections, including that
the suit is vague, ambiguous, and not maintainable; that it lacks
proper valuation and necessary parties; and that the relief of
declaration without possession is barred under Section 34 of the
Specific Relief Act. It is also contended that the suit is barred under
the Benami Transactions (Prohibition) Act, 1988, as the plaintiffs
seek to assert benami ownership, which is impermissible in law.
Further objections include improper signing of the plaint by Plaintiff
No. 2, alleged coercion by Plaintiff No. 1, and contradictions in the
plaintiffs’ stand across various proceedings. The plaintiffs have
taken inconsistent positions regarding ownership and possession and
have failed to produce any documentary proof of payment or
ownership.
On merits, the defendants deny all material allegations of the plaint,
including claims of ownership, possession, and dispossession. It is
reiterated that Defendant No. 1 is the rightful allottee, and all
payments were made on her behalf. The plaintiffs were never in
possession, nor were they dispossessed. It is further stated that
Plaintiff No. 1 unlawfully inducted tenants, collected rent, and is
liable to account for such amounts.
The defendants also assert that Defendant Nos. 1 and 3 are now
joint allottees/co-owners as per the society records. Various
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proceedings, including police complaints and civil suits, support the
defendants’ possession and ownership. The Local Commissioner’s
report in the defendants’ suit confirms their possession, and any
contrary reports relied upon by the plaintiffs are disputed and not
binding. The defendants submit that the plaintiffs’ case is false,
contradictory, and devoid of merit. The suit is liable to be dismissed
with costs.
4. REJOINDER:-
Rejoinder has been filed by the plaintiff no. 1 and 2 to the
written statement filed by defendant no. 1 and 3 wherein they have
denied the submissions of the defendants as contained in the written
statement and have reaffirmed and reiterated the contents of the
plaint.
5. ISSUES:-
Upon completion of pleadings, the following issues were
framed for trial on 23.02.2006.
1. Whether the suit is barred U/s 34 of The Specific Relief
Act? OPD
2. Whether the suit is barred by The Benami Transactions
(Prohibition) Act, 1988? OPD
3. Whether the suit is barred by non-joinder of necessary
parties? OPD
4. Whether the suit is properly signed and instituted? OPP
5. Whether the suit is not maintainable in view of
contradictory and inconsistent stand of ownership of the
plaintiffs? OPD
6. Whether the entire payment for the property was paid by
the plaintiffs. If so, its effect?OPP
7. Whether the alleged purchase, although in the name of
the defendant no.1, was in fact for the benefit of the
plaintiffs? OPPCS No. 2985/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 9 of 68
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8. Whether the plaintiffs had been in settled, actual and
lawful possession of the property? OPP
9. Whether the plaintiffs were in possession of the suit
property six months prior to the filing of the suit and they
have been wrongfully dispossessed. If so, to what effect?
OPP
10. Relief.
No other issue arose, was claimed, or was framed at that stage.
On 25.07.2008, the following additional issue, being Issue
No. 9(a), was framed:
9(a) Whether the plaintiff no.2 had executed a legal and
valid Will dated 14th July, 2007 in favour of Mr. Mukul?
OPP
6. PLAINTIFFS’ EVIDENCE:-
The plaintiff No. 1, Sh. Piyush, examined himself as PW-1
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.
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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
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
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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 bearing
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.
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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.
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
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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
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.
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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.
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
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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
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
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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
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
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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)
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.
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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.
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
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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.
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
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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
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
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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
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
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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
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
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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 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
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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).
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
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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.
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. 2984/16 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 isCS No. 2985/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 26 of 68
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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 the 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
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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
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,
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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.
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
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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
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
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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
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 isCS No. 2985/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 31 of 68
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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.
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
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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
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
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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
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.
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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
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
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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
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
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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
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
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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
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
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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
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):
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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
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
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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
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.
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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
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
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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
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.
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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.
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.
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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
(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
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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 heard the learned counsel for both parties, carefully
perused the record, and considered the relevant legal precedents and
judicial pronouncements applicable to the present case.
10. ISSUE-WISE FINDINGS:-
(The issues are not being dealt with serially for the sake
of effective and comprehensive adjudication):
Issue No. 9:
The present suit has been filed under Section 6 of the Specific
Relief Act. The Section 6 of Specific Relief Act is reproduced as
follows:
“6. Suit by person dispossessed of immovable property.
(1) If any person is dispossessed without his consent of
immovable property otherwise than in due course of
law, he or any person through whom he has been in
possession or any person claiming through him may, by
suit, recover possession thereof, notwithstanding any
other title that may be set up in such suit.
(2) No suit under this section shall be brought–
(a) after the expiry of six months from the date of
dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed
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in any suit instituted under this section, nor shall any
review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from
suing to establish his title to such property and to
recover possession thereof.”
To avail the relief under Section 6, it is necessary to establish that
the plaintiffs were in possession of the property, that they were
dispossessed without their consent and otherwise than in due course
of law, and that the suit was filed within six months from the date of
dispossession. The question of ownership is not directly relevant for
the purpose of adjudication under Section 6 of the Specific Relief
Act.
In the evidential affidavit of PW-1/Plaintiff No. 1, Sh. Piyush, it is
stated that on 28.02.2001 at about 16:30 hours, Defendant No. 2
vacated the premises and handed over possession under his
occupation to the plaintiff, and that the plaintiffs were wrongfully
dispossessed on 03.03.2001 from the suit property. The relevant
portion of the evidential affidavit is reproduced as follows:
“…..On 28.2.2001 at about 16.30 Hrs. Defendant no.2
had vacated the premises and handed over the
possession under his occupation to the plaintiffs.
Defendant no. 2 also issued a possession letter to the
plaintiffs on 28.2.2001 vide Ex. PW1/57 which bears
the signature of defendant no.2, witnesses Sh. Z.
Ahmed and Sh. Mahip Naik at point A, B & C who
signed on 28.02.01 at 214. Supreme Enclave N.D. at
about 16:30 Hrs in the presence of deponent and in the
presence of each other in their respective handwritings
and defendant no.2 handed over the same to the
deponent and the deponent verifies the same. However
defendant no.2 re-entered along with defendant no.1
and 3 wrongfully dispossessing the plaintiffs on
3.3.2001 vide Mark Ato Mark H and Ex. P1 to Ex. P14
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Exhibited and Marked, certified copy of local
commissioner report dated 30.3.2001. and the local
commissioner report dt. 15.04.1998 defendant no. 1
and/or 3 never paid or got paid any money or any
portion thereof towards the said property, to plaintiff/s,
late Sh. M.S. Gupta or the society or to anybody else
whomsoever till the date of wrongful, without consent,
forcible and illegal dispossession of the plaintiffs on
3.3.2001.”
It is stated that the possession letter Ex. PW-1/57 was issued by
Defendant No. 2 and also bears the signatures of J. Ahmad and Sh.
Mahip Nayak as witnesses. The said possession letter has been
disputed on behalf of Defendants No. 1 and 3. Defendant No. 2,
Neeraj Shekhar, did not appear before the Court, nor was he
summoned as a witness on behalf of the plaintiff. It is also relevant
to note that Plaintiff No. 2, Smt. Prabha Devi, could not be
examined, having expired at the initial stage of the case.
The cross-examination of PW-1/Piyush renders the said possession
letter unreliable. The relevant portion of his cross-examination dated
19.08.2013 is reproduced as follows:
“Ex. PW1/57 was executed on the outside railing of the
suit premises. This document was got typed by
defendant no.2 from Patiala House Courts. I was not
present at the time of its typing. At the time of its
execution, myself, my mother (plaintiff no.2), Neeraj
Shekhar, Zabbar Ahmad, Adv and Mahip Naik, Adv
were present. I do not remember if any other person
was also present. On this document Ex PW1/57,
Mr.Neeraj Shekhar, Sh. Zabbar Ahmad, Adv and Sh
Mahip Naik, Adv had signed in my presence. It is
wrong to suggest that Ex PW1/57 was executed by
defendant no.2 on 28.02.2001. It is further wrong to
suggest that Ex PW1/57 is a factually incorrect
document. It is correct that 1 have no denied my
handwriting at point ‘A’ (28.2.2001) on Ex PW1/57 inCS No. 2985/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 48 of 68
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my plaint or any pleading including replication.
It is correct that I had sent a legal notice to defendant
no.2, Neeraj Shekhar demanding the amount due from
him after he vacated the premises. The copy of same is
placed on record as Ex. PW1/55, I had sent the same
vide postal receipt Ex. PW1/56. The same was sent at
the instructions of both the plaintiffs. I am aware about
the contents of the same It is correct that by this legal
notice dated ‘nil’, but sent on 04.09.2001 vide Ex
PW1/56, a claim of Rs.500/- per day w.e.f. 25.11.2000
till 28.02.2001 and amount of Rs.46,500/- till
28.02.2001 and another amount of Rs. 36,000/- towards
electricity bills etc. with other further dues, were made.
Q In Ex PW1/57, the alleged document of surrender
written by Neeraj Shekhar on 28.02.2001, it is
mentioned that nothing is due, whereas the legal notice
sent subsequently had reflected ‘dues pending. Contents
of which of these two documents are correct?
A Whatever Neeraj Shekhar had written in Ex PW1/57,
only indicates that nothing was due from the plaintiffs.
(Objected to as being purely a legal question).
It is incorrect to suggest that my legal notice Ex
PW1/55 itself suggests that Ex PW1/57 is fraudulently
prepared and is incorrect document.”
A comparison of Ex. PW-1/57 and the legal notice Ex. PW-1/55
shows inconsistency. While the possession letter records that
nothing was due, the legal notice allegedly issued thereafter claims
outstanding charges for the period from 25.11.2000 to 28.02.2001.
These circumstances weaken the genuineness and reliability of the
alleged possession letter. Further, the contents of Ex. PW-1/57 are
vague and do not clearly specify to whom possession was handed
over. The contents of the possession letter are reproduced as
follows:
“Possession of Flat No.214, situated at Supreme
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has been handed over and nothing is due.”
As regards Jabbar Ahmad, who is stated to have attested Ex.
PW-1/57, his examination-in-chief does not fully support the
plaintiffs’ case. His testimony is reproduced as follows:
“I know the plaintiff no.1 since earlier I was a
practicing advocate at Patiala House Courts and used to
sit in the chamber of the plaintiff no.1 from 1999 to
2001.
At this stage, document already Ex. PW1/53, Ex.
PW1/54 and Ex. PW1/57 have been shown to the
witness and he identifies his signatures upon them at
Point A. I do not know the exact contents of these
documents but I can only say that these are
lease/licence deeds.”
In the last line of his examination-in-chief, he stated that the
documents were lease or licence deeds, while also referring to Ex.
PW-1/57, which, according to the plaintiffs, is a possession letter. In
his cross-examination, PW-22 Jabbar Ahmad failed to disclose who
else had signed the said documents, including Ex. PW-1/57. The
relevant portion of his cross-examination is reproduced as follows:
“Presently, I am engaged in agriculture at Garh
Mukteshwar, UP. However, I am residing in Delhi. I
have no knowledge who were present when I signed on
Ex. PW1/53. Same is answer in respect of document
Ex. PW1/54 and Ex. PW1/57. 1 do not remember if any
one else had already signed on the said documents,
when I put my signatures upon them. I signed all the
three documents on different dates.”
From the examination-in-chief and cross-examination of PW-22
Jabbar Ahmad, Ex. PW-1/57 does not stand proved. No sufficient
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evidence has been brought on record to establish that possession
was handed over by Neeraj Shekhar to the plaintiffs on the said
date. On the anvil of balance of probabilities, it is evident that the
plaintiffs have failed to prove that possession of the flat was handed
over to them by Sh. Neeraj Shekhar.
It is the case of the plaintiffs that they were dispossessed by the
defendants on 03.03.2001. Plaintiff No. 1/PW-1 stated that he, along
with his family, was residing in the suit property; however, he failed
to disclose the whereabouts of his family members on that day. The
relevant portion of his cross-examination dated 19.08.2013 is
reproduced as follows:
“According to me I was dispossessed from the suit
premises on 03.03.2001. I went to the court in the
morning at about 10:00 AM and came back at about
5:00 PM when I found the locks broken and luggage
my displaced. Again said, the luggage was removed
from the suit premises. No other person was present at
the suit premises, when I had left for the Court at 10
AM on that day. I do not remember where my son was
on that day. I do not remember where my daughter was
on that day. I do not remember where my wife was on
that day. I do not remember where my mother was on
that day. I myself had locked the entire premises at 10
AM that day. I came to know about my dispossession
only when I came back at 5 PM and found the locks
broken and luggage removed.”
There is no disclosure in the plaint or in the evidential affidavit as to
how he came to know that the defendants had broken the locks. In
his cross-examination, he stated that Virender Kumar, a carpenter,
had been cited as a witness who was present at the time of
dispossession. The relevant portion is reproduced as follows:
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“Q Are you aware of any witness, which are so cited by
you in your list of witnesses, being present at the time
of your alleged dispossession?
A Virender Kumar, carpenter cited by me as a witness,
was present at that time.
Q Is it correet that no other witness was cited by you
who were present at the time of your alleged
dispossession?
A Yes.
Q Did you inform this fact or produced this witness
before the police authorities?
A I do not remember.
It is incorrect to suggest that I did not inform so or
produced this witness before police, as he was
subsequently managed by me as a false witness.”
The evasive reply regarding the production of the said witness
before the police also goes against the plaintiffs. Moreover, no
witness named Virender Kumar has been examined on behalf of the
plaintiffs. Instead, PW-19 Arun Gupta was examined, who deposed
regarding the breaking of the locks of the suit property. His
examination-in-chief (in the form of an evidential affidavit) is
reproduced as follows:
“1) That on 03.03.2001 at about 12 noon defendants
along with their agents had broke open the locks of
214, Supreme Enclave Mayur Vihar Phase I New Delhi
and removed the luggage from the flat on the pretext
that they had lost the keys and that they wanted to shift,
more particularly with the help of welding machine, a
carpenter and a key maker whom the deponent can
recognize if confronted to me in the presence of
deponent.
2) That the deponent later came to know that on
03.03.01 the defendant alongw ith their agenets had
dispossessed the plaintiffs otherwise than in due course
of law.”
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However, Arun Gupta finds no mention in the plaint or in the
evidential affidavit of PW-1. As discussed above, PW-1 did not
refer to Arun Gupta and mentioned only Virender Kumar. In his
cross-examination, Arun Gupta stated that he knew Plaintiff No. 1
since 1990-1991, whereas PW-1, in his cross-examination dated
04.02.2014, stated that he knew Dr. Arun Gupta only after 2001.
The relevant portion is reproduced as follows:
“I know Dr. Arun Gupta. I do not remember as to how I
came to know Dr Arun Gupta for the first time. I know
him after the year 2001. (Vol., after my
dispossession).”
From the cross-examination of Dr. Arun Gupta, his testimony
regarding the alleged dispossession does not inspire confidence. He
failed to answer material questions with specificity and admitted
that he had neither approached the police nor been produced before
the police in relation to the alleged incident. It remains unexplained
why he was not presented as a witness to the alleged incident when
a complaint was made to the police.
In view of the above discussion, the testimony of Arun Gupta does
not establish the alleged incident of dispossession or breaking of
locks on 03.03.2001. Consequently, the plaintiffs have failed to
prove the act of dispossession by the defendants on the said date.
In view of the foregoing discussion, the plaintiffs have failed to
establish that they were in possession of the suit property within six
months prior to the filing of the suit and that they were wrongfully
dispossessed.
Accordingly, the present issue stands decided against the plaintiffs.
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Issue No. 8:
The present suit has been instituted under Section 6 of the Specific
Relief Act, 1963. The question as to whether the plaintiffs are
entitled to any relief under Section 6 has already been examined
hereinabove while dealing with Issue No. 9. The issue in question
may not be of direct relevance for the adjudication of the suit;
nevertheless, the Court is required to return findings on all the issues
framed.
In the present case, the plaintiffs have failed to establish when they
came into possession of the suit property. It is merely stated in the
plaint that the plaintiffs came into possession immediately after
construction. Paragraph No. 3 of the plaint, which seeks to indicate
when the plaintiffs came into possession, is reproduced as follows:
“3. That the plaintiff No.1 and 2 had been in actual
physical and exclusive possession and occupation of
Flat No. 214, Supreme Enclave, Mayur Vihar, Delhi on
and before 03.03.2001, for more than 12 years since
immediately after construction when the plaintiff No. 1
and 2 had taken the possession of the said flat without
any formal letter of possession having been issued from
the Supreme Co-operative Group Housing Society at
that time.”
No specific date, time, or year has been mentioned as to when
possession was taken. The averments are general and vague, merely
stating that possession was taken. It is highly improbable that no
possession letter or share certificate was issued and yet possession
was taken. Further, it is not clarified as to who handed over
possession to the plaintiffs. In the cross-examination of
PW-1/Plaintiff No. 1, it is stated that possession of the flat was
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taken on 09.04.1988, though no basis for the said assertion has been
provided. It also remains unexplained as to why no such date has
been mentioned in the plaint or in the evidential affidavit.
No document from the cooperative society or RWA has been placed
on record to show that possession was ever given to the plaintiffs or
that they were ever in possession. In fact, in cross-examination,
Plaintiff No. 1/PW-1 himself stated that the society never offered
possession of the flat to his mother. It is difficult to accept that
possession of a society flat could be taken without the society
having offered possession.
After Paragraph No. 3, the plaint again refers to possession in
Paragraph No. 4, wherein it is only stated that the plaintiffs have
been in settled possession since day one. Paragraph No. 5 contains
similarly general and vague averments without specifying to whom
and when the property was given on lease or licence. In Paragraph
No. 6, it is stated that the property was given on licence to Sh.
N.K.P. Sinha, again without sufficient particulars. Paragraph No. 6
of the plaint is reproduced as follows:
“6. That in March, 1995 plaintiff No. 2 the mother,
plaintiff No. 1 and Late Sh. M.S. Gupta, father of
plaintiff No. 1 and husband of plaintiff No. 2 orally
authorised the plaintiff No. 1 to license the flat for
eleven months period to the licensee, and the legal
control, possession and occupation continued with the
plaintiffs though a lease deed captioned as proposed
one was signed by Shri N.K.P. Sinha, R/o Patna Road,
Patna, Bihar, and the plaintiff No.2 but a lease deed
agreement was never executed and that it was only
lease and that the possession was handed over to the
plaintiffs on 31.03.1998 and the said Shri Sinha heldCS No. 2985/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 55 of 68
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possession as tenant under the plaintiffs. He paid rent to
the plaintiff No. 1 and 2. only.”
Notably, N.K.P. Sinha has not been examined as a witness. In the
cross-examination of PW-1/Plaintiff No. 1, namely Piyush,
improbable and unreliable answers were given regarding the alleged
tenancy between the plaintiffs and N.K.P. Sinha. The relevant
portion of the cross-examination dated 12.08.2013 is reproduced as
follows:
“Q. Who was first tenant in the suit property?
A Sh. N K P Sinha was a licencee for 11 months
commencing from 10.03.1995.
I and my mother, i.e. the plaintiffs had inducted Sh
NKP Sinha in the aforesaid occupation. This
occupation was under an oral agreement. I arm aware
of Ex. P9 which is the proposed lease agreement
written in hand. My mother and Sh NKP Sinha had
signed Ex P9. (Vol.. signatures of my mother were
fraudulently obtained by Sh. NKP Sinha, seribe of the
document and their agents). I came to know about the
execution of document Ex P9 on 10.03.1995 but I was
not aware of its contents as it was in the possession of
Sh NKP Sinha. I came to know about the contents of
document Ex P9 only after Sh NKP Sinha filed a suit
against me.
Q Did Mr NKP Sinha made any payment to the
plaintiffs under Ex P9?
A He made payment of Rs.39,000/- by way of
bearer cheque and then Rs. 20,000/- by way of another
bearer cheque to the plaintiffs and the same were duly
encashed by me.
Q Were these bearers cheques issued in the name
of defendant no.1?
A I do not remember.
Q Are you aware that Mr NKP Sinha in his
aforestated suit, mentioned by you, made a statement
before the court that he was never inducted by theCS No. 2985/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 56 of 68
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plaintiffs in the suit property nor he paid any rent etc. to
the plaintiffs?
A I am aware that he had never made such a
statement.
At this stage a document Ex PW1/DX7 is shown to the
witness which is the statement of Sh NKP Sinha before
a court of learned Civil Judge, Delhi. A portion from
point ‘A to Al’ is read over to the witness.
Q Are you aware of this portion of the statement?
(The witness objects to this document being put to him
as this is not his statement).
A I am aware. (Vol., this is an untrue statement.
This has been made in connivance conspiracy and
conjunction with defendant and Mr Rajesh Aggarwal).”
The response of PW-1 regarding whether the cheques were issued in
the name of Defendant No. 1 is evasive. The cross-examination and
document Ex. PW-1/DX7 indicate that Sh. N.K.P. Sinha had
deposed on oath that he never handed over possession of the
property to Sh. Piyush or Smt. Prabha Devi at any point of time. The
said document also indicates that cheques were issued in favour of
Defendant No. 1, Smt. Manisha Gupta, and that no rent was paid to
the plaintiffs.
Although Ex. PW-1/DX7 may not be treated as substantive evidence
of the contents thereof, once the defendants have specifically
disputed the plaintiffs’ version, the burden lay upon the plaintiffs to
prove the alleged tenancy as well as the handing over or return of
possession by N.K.P. Sinha. No such evidence has been adduced.
It is also not clarified whether the entire flat was given on rent to Sh.
N.K.P. Sinha, as neither the plaint nor the evidential affidavit
provides clarity in this regard. The averments in Paragraph No. 6 of
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the plaint are vague and contradictory.
While it is stated in Paragraph No. 6 that Shri Sinha held possession
as a tenant under the plaintiffs and paid rent to them, the cross-
examination dated 18.07.2014 reflects inconsistency. The relevant
portion is reproduced as follows:
“Q. I put it to you that in your present deposition you
have deposed that you are continuously living the suit
property with family since the year 1988 till March
2001, whereas in Ex. PW1/D3X1 you had stated that
tenant Mr. N K P Sinha had vacated the suit property
and handed over the keys to you at A-9 Niti Bagh,
Delhi in the year 1998 itself. Which part of your
statement is correct?
A. Both are correct statements.”
It is unclear how both statements can be correct simultaneously,
particularly when it is alleged that possession was handed over to
the plaintiffs on 31.03.1998, while at the same time it is claimed that
the plaintiffs were residing in the property throughout. The
documents relating to litigation between the parties (N.K.P. Sinha
and the plaintiffs/defendants) do not support the plaintiffs’ version.
In such circumstances, it was incumbent upon the plaintiffs to
clarify these inconsistencies; however, no evidence has been led in
this regard.
Sh. Jog Singh has also been shown as one of the licensees, yet he
has not been examined. On the contrary, it has been suggested on
behalf of the defendants that Jog Singh handed over possession to
Defendants No. 1 and 3.
It is further stated that there was a telephone connection in the suit
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property in the name of Plaintiff No. 1. However, this fact alone
does not establish settled possession. It has been alleged on behalf
of the defendants that the said connection was obtained through
misrepresentation. It is admitted that the electricity connection of
the suit property stands in the name of Defendant No. 1. In cross-
examination, PW-1/Plaintiff No. 1, Piyush, stated that no electricity
bills were ever issued in his name or in the name of Plaintiff No. 2.
The argument based on the telephone connection, therefore, carries
little weight, particularly when the electricity connection stands in
the name of Defendant No. 1.
The plaintiffs have also relied upon the report of a Local
Commissioner prepared in another case. The Local Commissioner,
Sh. M.C. Upreti, was examined as PW-12. It has been the consistent
stand of the plaintiff/PW-1 that he was residing in the suit property.
However, in his cross-examination, the Local Commissioner stated
that no articles were found in the rooms and that the rooms were
empty. He also stated that no notice was given to the defendants at
the time of his visit. In view of this testimony, no inference
regarding possession of the plaintiffs can be drawn.
It is stated that the property was given on licence/lease to Defendant
No. 2/Neeraj Shekhar or others. However, mere grant of a licence or
lease does not establish settled, actual, and lawful possession,
particularly in light of the above discussion wherein the plaintiffs
have failed to prove their possession at any point of time.
Accordingly, the plaintiffs have failed to establish their settled
possession over the suit property.
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Accordingly, this issue is decided against the plaintiffs.
Issue no. 2, 5, 6 and 7:
All these issues are interconnected and intertwined and are,
therefore, addressed together.
The present suit has been filed under Section 6 of the Specific Relief
Act. As we have discussed above, to avail the relief under Section 6,
it is necessary to establish that the plaintiffs were in possession of
the property, that they were dispossessed without their consent and
otherwise than in due course of law, and that the suit was filed
within six months from the date of dispossession. The question of
ownership is not directly relevant for the purpose of adjudication
under Section 6 of the Specific Relief Act.
Upon consideration of the averments made by the plaintiffs, it is
evident that their case is 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 the entries in the name of Defendant No. 1 are “sham.” This
constitutes a categorical stand. 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 sought to explain the same as a
“typographical mistake.” This contradiction goes to the root of the
matter. Ownership cannot oscillate between the father (as per earlier
pleadings), the mother (as per the present suit), joint contribution (as
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per Paragraph No. 4 of the plaint), and the theory of sham entries (as
per the evidential affidavit/examination-in-chief of PW-1). A
typographical error cannot account for such a complete substitution
of the identity of the purchaser.
Paragraph No. 4 of the plaint states that “money including
construction money cost of land share money… to their respective
benefits,” thereby indicating a joint contribution. However, an
earlier portion of the plaint asserts that the entire consideration was
paid by Plaintiff No. 2. Further, in the evidentiary affidavit of
PW-1/Plaintiff No. 1 (paragraph beginning “The entire money for
the purchase of the flat”), it is again asserted 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 a substantial portion had been paid by
his mother, and that he did not remember the exact amount paid by
him. This inconsistency between Paragraph No. 4 of the plaint, the
assertion in the affidavit that the “entire money” was paid by
Plaintiff No. 2, and the admission in cross-examination materially
weakens the financial foundation of the claim of ownership.
Insofar as the contention regarding the alleged admission by
Defendant No. 1 of payment of the consideration amount is
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
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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.
Even if the applicability of the Prohibition of Benami Property
Transactions Act, 1988 is considered in light of the plaintiffs’ plea
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.
As discussed above, the plaintiffs have not been able to prove that
the property was purchased for the benefit of Plaintiff No. 2. A mere
averment regarding payment of consideration is insufficient to
establish that the property was so purchased.
In the absence of any cogent evidence to establish 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.
In view of the foregoing discussion, all the aforesaid issues stand
decided accordingly.
Issue No. 4:
It has been contended 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 argued that she
had filed an affidavit seeking withdrawal of the suit.
The record reflects that the plaint bears the signatures of Smt.
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Prabha Devi Gupta as Plaintiff No. 2 at the appropriate place, and
her name is also mentioned as Plaintiff No. 2 on the first page of the
plaint. Although certain changes appear in the amended memo of
parties showing Smt. Prabha Devi Gupta as Plaintiff No.
2/Defendant No. 4, merely on that basis it cannot be concluded 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 make a statement to that effect. The
mere filing of an affidavit does not amount to withdrawal of the suit.
The said affidavit has also been disputed on behalf of the plaintiff.
In such circumstances, it was incumbent upon Plaintiff No. 2 to
appear before the Court and either make a statement regarding
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. 1:
As discussed above, in a suit under Section 6 of the Specific Relief
Act, no substantive relief other than recovery of possession can be
claimed or granted, and the question of ownership is not directly
relevant for adjudication under the said provision. In the present
suit, the plaintiffs have sought relief of possession and have not
claimed any relief of declaration, the same having been expressly
given up. In this regard, a submission on behalf of the learnedCS No. 2985/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 63 of 68
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counsel for the plaintiffs is recorded in the order dated 23.02.2006.
There is also no issue framed as to whether the plaintiffs are entitled
to any declaration.
In these circumstances, Section 34 of the Specific Relief Act has no
application to the facts of the present case. Accordingly, this issue is
decided against the defendants.
Issue No. 3:
It has been stated in the written statement filed on behalf of
Defendants No. 1 and 3 that the suit is barred for non-joinder of
necessary parties, namely the Supreme Co-operative Group Housing
Society and the State of NCT of Delhi. However, in the facts and
circumstances of the present case, particularly when the suit has
been instituted under Section 6 of the Specific Relief Act, the said
parties are neither necessary nor proper parties for adjudication of
the present dispute.
In view of the above, this issue is decided against the defendants.”
Issue no. 9A (as framed on 25.07.2008):
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
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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)
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 ofCS No. 2985/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 65 of 68
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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.
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
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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.
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
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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 the foregoing discussion, the suit of the plaintiffs is
hereby dismissed.
12. The decree-sheet be prepared accordingly.
13. The file be consigned to record room after due compliance.
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Pronounced in the open court VIKAS by VIKAS GARG
Date:
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17:06:44 +0530
(Vikas Garg)
District Judge-05 /EAST
KKD, Delhi-07.05.2026
CS No. 2985/16 Piyush and Ors. Vs. Manisha Gupta and Ors. Page of 68 of 68
