Ajay Sharma v. Rajinder Sharma & Anr.

1. The petitioner and respondent are brothers. The suit premises "Q-62, West Patel Nagar, New Delhi" was purchased by their father i.e. late. Shri Jagdish Chandra Sharma from one late Sh. Gopi Nath in 1960 for consideration.

2. The respondent/defendant No. 1 allegedly by fraud and concealment of facts entered into a Transfer Deed with regard to the suit property with late Sh. Gopi Nath without telling anyone and also without the written consent of his father late Sh. Jagdish Chandra Sharma and also got mutation letters ofthe suit property in his own name.

3. Thereafter the respondent apologized for the same and voluntarily got executed one registered General Power of Attorney in favour of his father late Sh. Jagdish Chandra Sharma and further confirmed the name by way of an affidavit dated 9"^ July, 1979.

4. Consequently, the father late Shri Jagdish Chandra Sharma vide registered Gift Deed dated 28"^ August, 1992 transferred the title ofthe suit CM(M) No.1053/2013 Page] of[3] 2013:DHC:7393 property in the name ofhis wife, mother ofplaintiff and defendant No. 1, late Smt. Leela Wati, who then got the property mutated in her own name by mutation letter No. L&DO/PS-I/613 date 18t July 1994. Thereafter late Smt. Leela Wati executed another Gift Deed with regard to the first floor and roof rights and second floor in favour of defendant No. 1 the suit property dated 28^''May, 1999,5. In November, 2004 the mother of the plaintiff (Smt. Leela Wati) received a letter from defendant No. 2 i.e. L&DO bearing No. L&DO/PS- 1/1550 whereby it was stated that the L&DO had cancelled the mutation dated 18^*^ July, 1994 in favour of Smt. Leela Wati and also that the suit property has been restored in the name of original mutate i.e. defendant No.l.

6. Defendant No. 2(L&D0) by another letter dated.3'^'' May, 2006 advised the petitioner to approach the competent court as the defendant NO. 2 admits that there are claims and counter claims with regard to the suit property and vide the last letter dated 29^*^ April, 2010 the defendant No. 2 informed that the suit property stands in the name of defendant.No.2 (Rajender Shamia, brother of petitioner).

7. Aggrieved by the same, on the apprehension that the defendant No. 1 and defendant no. 2 are acting hands in glove with each other, the petitioner filed a Civil Suit for declaration and permanent injunction to declare the cancellation of mutation in the name of Smt. Leela Wati wife of Jagdish Chandra Sharma and restoring the same in the name of the defendant No. 1 by the defendant No. 2(L&D0) as null and void and praying for restoration ofmutation in the name of Smt. Leela Wati. (No. 619/2010). CM(M)No.l053/2013 Page 2 of[3] €)

8. During the pendency of this suit the petitioner on 14^^ September, 2012 filed an appHcation under Order 11 Rule 14read with section 151 CPC for production ofcertain documents as they were not traceable at the point of institution of the suit. These documents are: Agreement to sell b/w Sh. Jagdish Chandra Sharma and Smt.' Leela Wati dated lO^"" July, 1979 as well as the affidavit; Registered Receipt dated 10^^ July, 1979; L&DO letter No. L&DO/PS-I/302 dated 4^*^ May, 2007; RTI appHcation dated 5^^ May, 2010; Reply letter No. L&DO/PS-I/347. Petitioner also filed an application dated 14^^ September, 2012 under Order 6 Rule 17 read with section 151 of CPC for amendment ofplaint with respect to documents mentioned above.

9. On 22"^^ July, 2013 the learned trial court passed the impugned order dismissing both the applications of the Petitioner/ Plaintiff observing that by the way of amendment the Plaintiff is taking contradictory stands and is trying to set up a new case that the father of the Plaintiff Late Sh. Jadgish Chandra Sharma also executed an agreement to sell, affidavit, registered receipt on favour of wife Smt Leela Wati (mother of plaintiff) and by virtue of this the property stood transferred in the name of mother of the plaintiff As far as allegation regarding collusion between defendants No.l and 2 is concerned, the liberty is granted to the petitioner to summon the record in accordance with law.

10. Having gone through the pleading and material placed on record and in view of discussion in the impugned order, which does not suffer from any infirmity, the present petition is dismissed.

JUDGE OCTOBER 01, 2013 CM(M) No.1053/2013, Page 3 of[3] /