Full Text
Date of Decision: 22nd January, 2013 CS(OS) No.1920/2011
& IA No.20633/2012 (of the defendants no. 1 to 3 under Order 9 R-7 and
Order 8 of the CPC) & IA No.20634/2012 (of the defendant no.1 u/O7
R-11 of the CPC).
PRADEEP KUMAR SHARMA & ANR. ..... Plaintiffs
Through: Mr. V.K. Malik, Adv. with Mr. Rahul Raj Malik & Mr. Rajeev Chauhan, Advs.
Through: Mr. Raj Bahadur Singh, Adv. for D-1 to 3.
RAJIV SAHAI ENDLAW, J
JUDGMENT
1. This suit was filed seeking i) declaration that the plaintiff No.2 Sh. Devi Singh Sharma is the recorded owner of the agricultural land comprising Khasra Nos.218 (2-17), 197 (2-19), 197/2 (1-8), 198 (1-2), ad-measuring 8 Bighas and 6 Biswas situated at village Asola, Fatehpur, New Delhi; ii) cancellation of the documents dated 05.05.2011 executed with respect to the said land; iii) permanent injunction restraining the defendants from creating 2013:DHC:355 any third party rights with respect to the said land or from raising any construction thereon or changing user thereof; and for iv) recovery of possession of the said land. The suit was filed by the plaintiff No.1 as next friend of the plaintiff No.2 on the ground that the plaintiff No.2 was old and suffering from partial dementia.
2. The case set out in the plaint was that the defendant No.6 Sh. Talim Khan who was the Chowkidar employed for safeguarding the said land and the room constructed thereon, filed a suit for injunction in the Court of the Civil Judge, Saket Court and in which suit the defendant No.1 who is the wife of the plaintiff No.2 and the mother of the plaintiff No.1 and defendants No.2 to 4, appeared and made a statement and on the basis of which, forcible dispossession of the defendant No.6 from the said land was stayed. It is further the case in the plaint that the defendant No.1 in the said suit represented herself to be competent to act on behalf of the plaintiff No.2 and reported settlement with the defendant No.6 and sale of the land to the defendant No.5 Smt. Satpal Tanwar, as per compromise recorded on 05.05.2011. The plaintiff No.1 pleads that the defendant No.1 did so under the influence of his siblings i.e. defendants No.2 to 4.
3. Summons of the suit and notices of the applications including for interim relief were issued though no interim relief granted. Mr. Vinod Kumar, Advocate appeared on behalf of the defendants on 15.11.2011 and time was granted to file the Vakalatnama and the written statement. The said advocate also gave an undertaking, on instructions from the defendants, that the defendants will not create any third party interest in the said land. However the written statement was not filed and again time was sought by the same advocate on 06.01.2012. On the following dates i.e. 27.03.2012 and 30.04.2012, Mr. Gagan Kumar, proxy counsel for Mr. R.B. Singh, Advocate appeared and again sought time for filing the written statement. Thereafter none appeared for the defendants on 04.05.2012, when the defendants were proceeded against ex parte, and the plaintiffs were directed to lead ex parte evidence and the interim order dated 15.11.2011 was made absolute. Though, Mr. Vinod Kumar, Advocate for the defendants again appeared on 22.08.2012 and stated that he would be moving an application for setting aside of the ex parte order but no such application was filed. The plaintiffs led their ex parte evidence on 20.09.2012 and closed their ex parte evidence on 01.10.2012.
4. IA No.20633/2012 was filed on 19.10.2012 under Order 9 Rule 7 and Order 8 of the CPC. Though affidavit in support thereof has been affirmed on 02.11.2012. Though this application is titled as on behalf of defendants no. 1 to 5 but the counsel who has made this application states that it is on behalf of defendants no. 1 to 3 only. It is stated in the application that the defendants no.1 to 3 had engaged Mr. Raj Bahadur Singh, Advocate but the said Advocate owing to his hospitalization could not attend the Court and his associate lawyer appeared before the Joint Registrar on 4th May, 2012 and communicated the next date as of 22nd August, 2012 to him. Recall of the order dated 4th May, 2012 is sought on the ground of ill health of Mr. Raj Bahadur Singh, Advocate.
5. Though the application aforesaid is filed beyond the prescribed period of limitation, it is not accompanied with any application for condonation of delay in filing the same. There is no prayer in the application also for condonation of delay in filing the application.
6. As far as the ground of ill health of the Advocate is concerned, the documents filed along with the application show the Advocate to have been admitted to the hospital on 13th February, 2012 and discharged on 15th February, 2012 and suffering from moderate to high grade fever with chills. Thereafter the investigation reports are of 19th April, 2012 and 6th May,
2012. There is nothing to show that the Advocate was bedridden or was not attending the Courts.
7. No case for setting aside of the ex parte is thus made out, more so, in view of what is recorded hereinabove. The application is dismissed.
8. IA No.20634/2012 has been filed by the defendant No.1 under Order
9. Though the defendant no.1 is ex parte and her application for setting aside of the ex parte has also been dismissed, the counsel has been heard on the said application.
10. The defendant no.1 seeks rejection of the plaint on the grounds:- (i). that the land aforesaid is governed by the provisions of Delhi Land Reforms Act, 1954 and this Court would have no jurisdiction to try the suit with respect thereto; (ii). that the plaintiff no.2 is suffering from memory loss and unable to take any decision or look after himself; (iii). that a petition for appointment of a guardian of the plaintiff no.2 is pending consideration before the Addl. District Judge (South), New Delhi; (iv). that the plaintiff no.1 has been residing separately from the plaintiff no.2 since the year 2002 and has not been taking care of the plaintiff no.2 and has filed the suit merely to grab the property of the plaintiff no.2; (v). that the suit is not properly valued for the purposes of court fees and jurisdiction.
11. Both the counsels inform that the plaintiff No.2 Sh. Devi Singh Sharma has died on 19th January, 2013. It is further informed that the plaintiff no.2 has left the defendant no.1 as his wife, the plaintiff no.1 and the defendants no.2&3 as his sons and the defendant no.4 as his daughter, as his only legal heirs and representatives.
12. The counsel for the plaintiff contends that since all the legal heirs are already on record, there is no need to make a formal application for substitution of the legal representatives of the plaintiff no.2. Oral prayer is made for taking on record the factum of the demise of plaintiff no.2.
13. The counsel for the defendants no.1 to 3 has no objection.
14. In view of the aforesaid, the factum of the demise of plaintiff no.2 is taken on record and he is formally ordered to be substituted by the plaintiff no.1 and the defendants no.1 to 4 who are already on record.
15. None has been appearing for the defendants No.4 to 6 who were proceeded against ex parte as aforesaid on 04.05.2012.
16. Coming back to the application of the defendant No.1 under Order 7 Rule 11 of the CPC, the counsel for the plaintiff also does not controvert that the subject land is governed by the provisions of the Delhi Land Reforms Act, 1954. He however contends that the Delhi Land Reforms Act bars the jurisdiction of the Civil Court, as this Bench is exercising, only qua the relief claimed in the plaint of declaration (which is inter alia a claim for declaration of bhumidari rights) and for the relief of possession. He states that insofar as the relief of declaration is concerned, he has already on 16.11.2012, on the basis of the statement of the counsel for the defendants No.1 to 3 that the plaintiff No.2 till then was the recorded owner of the land in question, given up the said relief. He further states that if the need for recovering possession arises, the plaintiff will institute appropriate proceedings before the Revenue Court under the provisions of the Delhi Land Reforms Act and the plaintiff as such does not press the relief of possession also.
17. The remaining reliefs of the plaintiff are for cancellation of documents dated 05.05.2011 and for permanent injunction restraining the other defendants from alienating, encumbering or parting with possession of the land or raising construction thereon or changing the user thereof. The said reliefs are admittedly not within the purview of the Revenue Courts under the Delhi Land Reforms Act. The plaint for the said reliefs thus cannot be rejected on the ground of the Delhi Land Reforms Act.
18. As far as the other grounds urged for rejection of the plaint are concerned, they do not fall within the purview of Order 7 Rule 11 of the CPC. The defendants being ex parte are not entitled to contest the valuation given by the plaintiff in the plaint.
19. IA No.20634/2012 (under Order 7 Rule 11 of the CPC) is accordingly disposed of.
20. Though the plaintiff has sought the relief of cancellation of documents dated 05.05.2011 but the counsel for the plaintiff is unable to show the documents of which cancellation is sought and / or vide which the subject land may have been dealt with. The counsel for the defendants No.1 to 3 also states that there are no such documents. The plaintiff in his ex parte evidence also has not been able to prove the documents of which cancellation is sought.
21. In the absence of the plaintiff showing any documents, the relief of cancellation whereof is sought in the plaint, no such relief can be granted to the plaintiff. The counsel for the plaintiff also states that since the land in the revenue records remains in the name of the deceased plaintiff No.2 as affirmed by the defendants No.1 to 3 also, there does not appear to be any such documents. The said relief is accordingly denied.
22. The only surviving relief is of injunction. The counsel for the defendants No.1 to 3 states that the defendants have no objection to all the legal heirs of the deceased plaintiff No.2 being injuncted from dealing in any manner with the property till the partition and / or settlement one way or the other, of the said land. The counsel for the plaintiff has no objections.
23. Insofar as the relief of injunction against defendants No.4 to 6 is concerned, it is the unrebutted ex parte evidence of the plaintiff Mr. Pradeep Kumar Sharma that the deceased plaintiff No.2 was the owner of the land and was suffering from dementia and no one had been appointed his guardian till his demise on 19.01.2013 and none as such was entitled to sell the subject land. Though no documents of transfer of any rights in the land in favour of the defendant No.5 have come on record, but it was recorded in the compromise in the suit before the Civil Judge that the defendant No.1 had sold the land to the defendant No.6. Such sale cannot be legal, as the defendant No.1 or any other defendants had no right to deal with the land of the deceased plaintiff No.2. The plaintiff has thus become entitled to the relief of injunction against defendants No.4 to 6 also.
24. The suit is thus partly decreed, injuncting the plaintiff as well as the defendants No.1 to 4 from alienating, encumbering or parting with the land aforesaid and / or for raising any construction thereon and / or for changing the user thereof till partition of the said land between the plaintiff and the defendants No.1 to 4. The defendants No.5 and 6 are also injuncted from alienating, encumbering or parting with possession of the said land and / or for raising any construction thereon or from changing the user thereof.
RAJIV SAHAI ENDLAW, J JANUARY 22, 2013 ‘gsr/pp’