Amit Singh Bakshi v. Harvinder Singh & Ors.

6. The plaintiff has asserted that Smt. Mohindar Bakshi had no children of her own. She, after demise of her husband, Shri Jagmohan Bakshi on 08.07.1972, sold her husband’s agricultural lands and house in Bijnor, Uttar Pradesh and shifted to Delhi. Smt. Mohindar Bakshi thus, purchased three immovable properties in Delhi, namely, the suit flat and the suit shops as detailed above. Smt. Mohindar Bakshi was inducted as a member of defendant No. 2-New Saraswati Cooperative Housing Society in or about the year 1995 and has been paying charges and the fee of the Society as well as the property tax to North Delhi Municipal Corporation.

7. The Shop bearing No. 24, LSC No. 7, MAS Complex, Rohini Sector- 9, New Delhi was purchased by Smt. Mohindar Bakshi from one Shri Ram Chand Gupata vide Agreement dated 30.11.2000 for a total consideration of Rs. 1,50,000/- and the contagious Shop bearing No. 25, LSC No. 7, MAS Complex, Rohini Sector-9, New Delhi was purchased by Smt. Mohindar Bakshi from one Shri S.C. Singhal in the year 1996.

8. Since Smt. Mohindar Bakshi had no children of her own to take care of her, in July 2004 she shifted from the suit flat to a Senior Citizens Facility in Godhuli Senior Citizens Home, Sector-2/7, Dwarka, New Delhi.

9. It is submitted that sometime in 2013, apparently, the defendant No. 1-Harvinder Singh, who was in need of place to stay, contacted Smt. Mohindar Bakshi, who agreed to rent out the suit flat to defendant No. 1-Harvinder Singh for three years w.e.f. November, 2013 vide Rent Agreement dated 06.11.2013 on a monthly rent of Rs. 8,000/- per month.

10. Further, on the request of defendant No. 1-Harvinder Singh, Smt. Mohindar Bakshi also gave Rs. 25,000/- on 18.06.2013, Rs. 25,000/- on 25.06.2013, Rs. 30,000/- on 05.07.2013, Rs. 10,000/- on 24.07.2013 and Rs. 15,000/- for the repairs of the suit flat. The total sum of Rs. 1,05,000/- was thus, given to defendant No. 1-Harvinder Singh. Taking advantage of the old age of Smt. Mohindar Bakshi, he cajoled her into helping him out to start a small business of a shopkeeper by letting him temporarily use the suit shops as a permissive licensee in the year 2015. Smt. Mohindar Bakshi gave Rs. 50,000/- to carry out the renovations and fittings in the suit shops, which the defendant No. 1-Harvinder Singh acknowledged by executing Receipt dated 11.03.2015.

11. The plaintiff has asserted that apparently the defendant No. 1-Harvinder Singh did not pay the rent during the period 2013 to 2016, except from November, 2014 to October, 2016, despite which he continued to be in the occupation of the suit flat.

12. The defendant No. 1-Harvinder Singh kept assuring Smt. Mohindar Bakshi and the plaintiff that he would not only clear the arrears of rent but also hand over the possession. Smt. Mohindar Bakshi then issued two Letters dated 11.05.2017 to the defendant No. 1-Harvinder Singh by Registered Post vide Postal Receipts dated 12.05.2017. Smt. Mohindar Bakshi in her Letter dated 11.05.2017 stated that the Rent Agreement had expired on 31.10.2016 and that neither had defendant No. 1-Harvinder Singh paid rent nor had he handed over the possession of the property. Smt. Mohindar Bakshi called upon him to vacate the suit flat and to pay arrears of rent. In the second Letter dated 11.05.2017, Smt. Mohindar Bakshi while asserting that she was the owner of the suit shops which were in illegal occupation of the defendant No. 1-Harvinder Singh, called him to vacate the suit shops within 30 days.

13. The defendant No.1-Harvinder Singh then approached Smt. Mohindar Bakshi to permit him to continue in possession of suit shops and the suit flat and also agreed to pay rent @ Rs. 10,000/- and undertook to furnish the post-dated cheques if he was granted a fresh Rent Agreement. Consequently, the Rent Agreement dated 01.06.2017 was executed in favour of the defendant No. 1-Harvinder Singh in respect of the suit flat for 11 months on the enhanced rent of Rs. 10,000/- per month w.e.f. 01.06.2017. Eleven postdated cheques were also handed over by him. Thereafter, similar Rent Agreement dated 21.05.2018 was executed in favour of the defendant No. 1- Harvinder Singh for 11 months and again post-dated cheques were issued for the monthly rent.

14. The defendant No. 1-Harvinder Singh, however, again failed to pay the arrears of rent from June, 2017 to September, 2017, January, 2018 to April, 2018 and from July, 2018 to March, 2019, and many of the post-dated cheques on presentation, had been dishonoured.

15. It is asserted that the defendant No. 1-Harvinder Singh then took interest-free loan of Rs. 3,60,000/- from Smt. Mohindar Bakshi for his kirana business which was acknowledged on a Declaration on Stamp Paper dated 02.06.2017 which was counter-signed by Smt. Mohindar Singh Bakshi and witnessed by the plaintiff and one Jasvinder Kaur. The defendant No. 1-Harvinder Singh undertook to repay the loan in monthly instalments of Rs. 20,000/-, starting on 03.07.2017, with the last payment on 03.12.2018. The defendant No. 1-Harvinder Singh assured that in case he failed to repay the loan amount as per schedule, he would be entitled to pay the interest on the entire amount w.e.f. the missed payment date till the entire principal was extinguished.

16. The plaintiff has asserted that Smt. Mohindar Bakshi, during her lifetime, executed the Will dated 15.07.2016 in the presence of two attesting witnesses, namely, Shri Kamalapati Joshi and Shri Gurpartap Singh and appointed the plaintiff as the sole Executor of the said Will.

17. Smt. Mohindar Bakshi died issueless, on 24.10.2018 and the plaintiff being the sole Executor of her Will dated took charge of her properties i.e., the suit flat and the suit shops. The plaintiff also enclosed a cheque of Rs. 8050/- along with Letter dated 01.02.2019 in favour of the defendant No. 2- New Saraswati Cooperative Housing Society towards Maintenance Charges and enclosed another cheque of Rs. 10,000/- towards future Maintenance and allied charges.

18. It is submitted that as the tenancy of the defendant No. 1-Harvinder Singh was getting over, he approached the plaintiff to let him continue to stay in the suit flat for some time till he made alternate arrangements, to which the plaintiff agreed and allowed him to stay in the suit flat vide Letter dated 01.04.2019 until further notice.

19. The plaintiff, in the meanwhile, also addressed the Letter dated 23.04.2019 to the President of the defendant No. 2-New Saraswati Cooperative Housing Society to provide him with all the requisite documents, though no response was received. Left with no alternative, the plaintiff wrote Letter dated 04.10.2019 to the defendant No. 1-Harvinder Singh asking him to vacate the premises and hand over the peaceful possession by 30.11.2019.

20. The defendant No. 1-Harvinder Singh requested the plaintiff to grant him additional time to seek an alternate accommodation and provided a Handwritten note dated 05.07.2009 which was unsigned, undated, and without witnesses, and claimed it to be in the hand-writing of his late Aunt Sh. Mohinder Bakshi, in which she purportedly evinced a desire to leave all her properties including the suit flat and shops to the Defendant No. 1. It is asserted that this alleged Handwritten document does not answer the basic requirements of a Will under Section 63 of Indian Succession Act, 1925 (hereinafter referred to as the “Act, 1925”) and is, in fact, an invalid nonbinding document.

21. Thus, only on purely humanitarian considerations, the Plaintiff through his counsel vide letter dated 10.12.2019 extended time upto 24.12.2019 to vacate suit flat, failing which the Plaintiff would be constrained to also take immediate possession of the suit shops.

22. Several correspondences were exchanged between the plaintiff and defendant no. 1/Harvinder Singh with respect to vacating the suit properties and the dishonoured cheques issued towards payment of rent of the suit flat and the repayment of the loan availed by the defendant no. 1. However, vide response to previous Notices dated 21.11.2019 and 10.12.2019 sent by plaintiff through his counsel, Defendant No. 1 not only refused to vacate the suit flat and suit shops but also mentioned that on the basis of an alleged Will/ Handwritten note, the Defendant No. 1 had already got transferred the suit shops in his name, and was also in the process of getting the suit flat transferred in his name.

23. Thus, the plaintiff has filed the present Suit in his capacity as Executor of the true and genuine Will of late Smt. Mohindar Bakhshi dated 15.07.2016 to seek possession and other reliefs.

24. It is further claimed that without prejudice to the plaintiff’s own contentions, even if it is accepted that Smt. Mohindar Bakshi had died intestate, her entire estate would devolve upon her two brother-in-laws, i.e. the plaintiff and Late Shri Gur Prakash Singh Bakshi, being the Class-II heirs of the deceased. The defendant No.1-Harvinder Singh even then does not inherit any rights in the suit flat and the suit shops in terms of Section 15(1)(b) or 15(2)(b) of the Hindu Succession Act, 1925 and would have no right whatsoever to claim any part or portion thereof.

25. It is further claimed that the rent arrears and loan amount due from Defendant No. 1- Harvinder Singh are as under: a) Monthly Rent of Rs. 8,000/- not paid from November 2013 to October 2014 i.e. 12 months amounts to Rs, 96,000/- (Rupees Ninety Six Thousand only); b) Illegal occupation of suit flat from November 2016 to May 2017 i.e. 7 months amounts to Rs. 56,000/-(Rupees Fifty Six Thousand only); c) Monthly Rent of Rs. 10,000/- not paid from June 2017 to September 2017 and January 2018 and April 2018 i.e. 8 months, amounts to Rs. 80,000/- (Rupees Eighty Thousand); d) Monthly Rent of Rs. 10,000/- not paid from July 2018 to March 2019 i.e. 9 months, amounts to Rs. 90,000/- (Rupees Ninety Thousand); e) Monthly Rent of Rs. 10,000/- not paid from April 2019 till date i.e. 11 months, amounts to Rs. 1,10,000/- (Rupees One Lakh Ten Thousand Only); f) Loan amount of Rs. 3,60,000/- (Rupees Three Lakhs Sixty Thousand only) given vide declaration of loan on stamp paper dated 02.06.2017, together with interest thereon at the rate of 18 per cent (18%) per annum from 02.07.2017 till the date of the suit.

26. The plaintiff has thus, filed a Suit for Possession, Declaration, Mandatory and Permanent Injunction and Recovery of Arrears of Rent seeking the following reliefs:- “ a) Hold and declare that the Defendant No. 1 has no right, title or interest in, and no authority to remain in possession of, Flat no. B-15 in New Saraswati Society, Plot No. 26/1, Sector - 9, Rohini, New Delhi - 110085, and two shops bearing nos.24 and 25 in LSC No. 7, MAS Complex, Rohini, Sector-9, New Delhi - 110085, and that the Plaintiff as executor of the will of Late Smt. Mohindar Bakhshi is entitled to vacant and peaceful possession of the said properties; b) Pass a decree of possession against the Defendant No. land in favour of the Plaintiff in respect of Flat no. B-15 in New Saraswati Society, Plot No. 26/1, Sector-9, Rohini, New Delhi - 110085and a decree of declaration that Defendant No. 1 has been illegally occupying the same since 24.12.2019; c) Pass a decree of possession against the Defendant No. land in favour of the Plaintiff in respect of shops bearing nos.24 and 25 in LSC No. 7, MAS Complex, Rohini, Sector - 9, New Delhi – 110085 and a decree of declaration that documents purported to have been executed by the Defendant No. 1 as well as the documents relied upon by the Defendant No. 1 for transfer of the said shops in his name are forged, fabricated and illegal and are liable to be cancelled; d) Pass a decree of mandatory injunction against the Defendant No. 1 to hand over vacant and peaceful possession of Flat no. B-15 in New Saraswati Society, Plot No. 26/1, Sector - 9, Rohini, New Delhi and shops bearing nos.24 and 25 in LSC No. 7, MAS Complex, Rohini, Sector - 9, New Delhi to the Plaintiff; e) Pass a decree of permanent injunction against the Defendant No. 1 restraining the Defendant No. I from dealing with in any manner whatsoever including creating third party rights in respect of Flat no. B-15 in New Saraswati Society, Plot No. 26/1, Sector - 9, Rohini, New Delhi and shops bearing nos.24 and 25 in LSC No. 7, MAS Complex, Rohini, Sector - 9, New Delhi; f) Pass a decree of permanent injunction against the Defendant No. 2 restraining the Defendant No. 2 from transferring shares of the suit flat in favour of Defendant No. 1 and also to restrain Defendant No. 2 from dealing with Defendant No. 1 in any manner whatsoever with respect to the suit flat; Pass a decree of mandatory injunction against the Defendant No. - 1 and Defendant NO. 2 to hand over all the documents including share certificate and title documents in respect of the suit flat to the Plaintiff; h) In the alternative, pass a decree of declaration that if this Hon'ble Court deems the will dated 15.07.2016 as invalid or unenforceable or not binding for any reason whatsoever, the suit flat being Flat No. B-15 in New Saraswati Society, Plot No. 26/1, Sector-9, Rohini, New Delhi-110085, and the suit shops bearing Nos. 24 and 25 in LSC No. 7, MAS Complex, Rohini Sector-9, New Delhi-110085, would devolve in equal shares upon the Plaintiff on one hand, and the heirs of Shri Gur Prakash Singh Bakshi, namely Defendants No. 3, 4 and 5, on the other hand, in accordance with Section 15(l)(b) and/or Section 15(2)(b) of the Hindu Succession Act, 1956; i) Pass decree of recovery of Rs. 3,60,000/- along with interest @ 18% p.a. from 2th July 2017; j) Pass decree of recovery of arrears of rent of Rs. 8,000/per month from November 2013 to October 2014 &. November 2016 to May 2017; arrears of rent of Rs. 10,000/per month from June 2017 to September 2017, January 2018 to April 2018 & July 2018 to March 2019, arrears of rent of Rs. 10,000/- per month from March 2019 onwards, along with interest @ 18% p.a.; k) Pass a decree for recovery of expenses incurred amounting to Rs. 5,00,000/- for the period from January 2019 till filing of the plaint in favour of the Plaintiff and against the Defendants, jointly and severally, along with pendente lite and future interest @ 18% p.a from the date of filing of the present suit till its realization; I) Pass a decree for recovery of damages and/or mesne profits for future period from date of filing of suit along with pendent lite and future interest @ 18% p.a. be passed against the Defendant No. 1; m) Pass a decree directing the Defendants, jointly and severally, to pay Rs. 5,00,000/-towards the damages suffered by the Plaintiffs on account of mental agony and harassment caused to Plaintiff; n) Award costs of the suit to the plaintiff against the defendants; and o) Grant such further or other relief as may be deemed fit and proper in the facts and circumstances of the case. “

27. The defendant No.1-Harvinder Singh in his Written Statement has not disputed the basic facts that Smt. Mohindar Bakshi had died issueless and had left no Class-I heirs. The defendant No.1-Harvinder Singh had taken a plea that the plaintiff has based his claim on the Will dated 15.07.2016 which on the face of it, is forged and fabricated and is an unregistered document; its contents are unnatural and there are many discrepancies and other suspicious circumstances surrounding the same which are apparent on the bare perusal.

28. The authenticity of the purported Will dated 15.07.2016 has also been challenged on the ground that one of the attesting witnesses is the brother of the plaintiff and the other attesting witness is the driver of the plaintiff, who both have colluded in fabrication of the Will. A false verification has been given by the plaintiff in the Suit and has filed the false documents for the purpose of evidence and to support his assertions.

29. It is also claimed that the deceased Smt. Mohindar Bakshi was not in proper state of mind because of her critical illness and was not aware of what she was doing at the time of alleged execution of the Will. It is further asserted that the plaintiff has taken undue advantage of his dominant position in cheating and committing breach of trust imposed on him by deceased Smt. Mohindar Bakshi. The plaintiff has misused the fiduciary relationship to his own advantage.

30. Furthermore, the plaintiff, who claims to be in possession of the original Will dated 15.07.2016, has not even produced it along with his Plaint.

31. Furthermore, without obtaining probate of that alleged forged Will dated 15.07.2016, the present Suit is otherwise also not maintainable. Unless the probate of the Will is obtained, the plaintiff cannot claim any title to the Suit.

32. Further, the plaint is bad for non-joinder of necessary parties as in the absence of Class-I legal heirs, the other relatives as provided under the Act, 1925 are entitled to inheritance and are thus, necessary parties which have not been impleaded.

33. Moreover, the probate could have been sought within two years which has expired and the Plaint, which is based solely on the un-probated Will, is not maintainable.

34. It is further asserted that even otherwise, Smt. Mohindar Bakshi had no title to the suit flat and suit shops as has been alleged in the forged Will. Even otherwise, the alleged rights of the plaintiff, though none existed, already stand extinguished under Section 27 of the Limitation Act, 1963.

35. The defendant No.1-Harvinder Singh has further taken a plea that his title to the suit flat and suit shops has got perfected by way of adverse possession. The defendant No. 1-Harvinder Singh has been in possession of the suit flat and suit shops since more than last 12 years and the same is in the knowledge of the plaintiff and thus, he cannot seek the possession. The Plaint does not disclose any cause of action.

36. Moreover, the plaintiff is not in possession of any portion of the suit shops and is liable to pay the court fee according to the market value of the shops. Therefore the suit is not properly valued and is, therefore, liable to be rejected. Moreover, the valuation of the suit flat and suit shops is less than Rs. 2,00,00,000/- and the suit has been improperly valued.

37. Additionally, promissory estoppel is claimed to be applicable which bars the present Suit as the plaintiff has already waived of and acquiescenced all his rights and has left with no locus to file the present Suit.

38. The defendant No.1-Harvinder Singh has claimed that there was no relationship of landlord and tenant between the deceased Smt. Mohindar Bakshi and him. Even the Lease Deeds relied upon by the plaintiff are sham documents created by the deceased Smt. Mohindar Bakshi to protect herself from the plaintiff as he was managing his Income Tax etc. These documents were never acted upon and the defendant No. 1-Harvinder Singh never paid any rent to the deceased Smt. Mohindar Bakshi.

39. Pertinently, the deceased Smt. Mohindar Singh had borrowed Rs. 8,00,000/- from the father of the defendant No. 1-Harvinder Singh around the year 1993-94 and had handed over the title documents of the suit flat as well as commercial shops by creating an equitable mortgage in the year 1996 and November, 2000. The father of defendant No.1-Harvinder Singh subsequently handed over the original documents and the mortgage loan was transferred in the name of defendant No.1-Harvinder Singh in the presence of the deceased Smt. Mohindar Singh Bakshi as per her instructions.

40. The deceased Smt. Mohindar Singh Bakshi, out of love and affection for the defendant No. 1-Harvinder Singh also executed an oral as well written Will/MoU in her handwriting on 05.07.2009, whereby she bequeathed suit flat and suit shops to the defendant No. 1-Harvinder Singh.

41. The defendant No. 1-Harvinder Singh has been running a Departmental Store with the name and style of M/s. Bakshi Sacchha Sauda till date in the said shops. Thus, he has been in settled and uninterrupted possession of all the suit flat and suit shops in his own right.

42. It is further asserted that Defendant was close to his aunt who bequeathed the properties to him because he cared for the deceased as a son and helped her with all her Bank jobs, Post Office job, Repairs of House, household, going to Bijnaur, U.P. or taking her from old age home to relatives, buying her groceries. Even the entire household items for the deceased were given from his shop free of cost every month and almost daily Defendant No. 1 used to personally supply and she also used to sit on the shop regularly from 1996 to the year 2000.

43. The suit flat and suit shops are being maintained by the defendant NO. 1-Harvinder Singh and he continues to enjoy them in the capacity of an owner. There was a complete ouster of the deceased Smt. Mohindar Bakshi and no rent was ever paid by defendant No.1-Harvinder Singh and the rent documents were sham documents which were never acted upon and the cheques were never in cashed by the deceased Smt. Mohindar Bakshi.

44. On merits, all the allegations made in the Plaint are denied.

45. It was asserted that while the plaintiff has relied upon the Will dated 15.07.2016, which is a forged and a fabricated document, the defendant No.1-Harvinder Singh has a Handwritten Will dated 05.07.2009 vide which he has inherited all the properties.

46. The Interrogatories were served by the plaintiff on the defendant No.1-Harvinder Singh which were duly answered by him.

47. Thereafter, the present Application under Order XII Rule 6 read with Section 151 CPC, 1908 has been filed on behalf of the plaintiff seeking Decree on Admissions.

48. It is submitted by the plaintiff in the application that it is admitted by defendant No.1-Harvinder Singh that Late Smt. Mohindar Bakshi had sold her husband’s agricultural land and house in Bijnour, Uttar Pradesh and when she shifted to Delhi, she acquired the suit flat and the suit shops and which are in her name and she had been paying the property tax till her demise in 2018.

49. The defendant No. 1-Harvinder Singh, while denying being inducted as a tenant in suit flat in Paragraph-11 of his Written Statement, on merits has admitted that deceased Smt. Mohindar Bakshi had given him money as a contribution for the repair of the suit flat and the suit shops.

50. It is further claimed the two Letters dated 11.05.2017 had been sent by the deceased Smt. Mohindar Bakshi to the defendant No.1-Harvinder Singh. The signatures of Smt. Mohindar Bakshi on those two letters have been admitted by the defendant No. 1-Harvinder Singh, even though he denies the contents.

51. It is further claimed that the defendant No.1-Harvinder Singh has admitted the Rent Agreements and issuance of post-dated cheques in answer to Question Nos.[9] and 10 of the Interrogatories read with his answers to Question Nos.2, 3, 4, 5, 6 and 7 of the Interrogatories. Though the defendant No.1-Harvinder Singh has claimed them to be the sham documents, but he admits that he signed the same in the presence of witnesses and also admitted issuing the cheques.

52. Furthermore, in Question Nos. 3 to 7 and 27 of the Interrogatories, defendant No.1-Harvinder Singh has admitted that several of the cheques issued by him to the deceased Smt. Mohindar Bakshi, were dishonoured by the bank on the ground of insufficient funds.

53. In Paragraphs 26 and 27 of the Written Statement the defendant No.1-Harvinder Singh, he had admitted that as his tenancy was getting over, he approached the plaintiff and requested him to let him stay for some more time in the suit flat and that till he was able to make alternate accommodation.

54. Furthermore, the documents produced by defendant No.1-Harvinder Singh in Index 3 of his Written Statement clearly demonstrate that his claim of residence and possession prior to 2013, is false. Moreover, in response to Interrogatory Question Nos. 15 to 18, the defendant No.1-Harvinder Singh has no document or material to establish any right whatsoever to remain in occupation of the suit flat after the expiry of the tenancy.

55. Moreover, the defendant No. 1-Harvinder Singh has claimed his title to have been perfected in the suit flat and the suit shops on the basis of two No-Objection Affidavits which had been allegedly given to him by the deceased Smt. Mohindar Bakshi. These two No-Objection Affidavits dated 22.04.2015 pertain to new Telephone connections in Shop No.25 and electricity connection in Shop No.24 and neither of these two connections pertain to the suit flat. These two No Objections Affidavits were issued by the deceased Smt. Mohindar Bakshi in her capacity as the owner of the suit shops as is clearly evident from these two documents.

56. The defendant No. 1-Harvinder Singh, however, clearly admits in answer to Question Nos.15 to 19 that the only basis for claiming his perfected title are the two No Objection Certificates, which are in no way in the nature of creating any right, title in favour of defendant No.1-Harvinder Singh.

57. The plaintiff has further asserted that defendant No.1-Harvinder Singh in his Paragraph-13 of the Written Statement has claimed that he did not have sufficient money to renovate and repair suit shops and he was given Rs.50,000/- by the deceased Smt. Mohindar Bakshi on 11.03.2015, for which he had executed a receipt which is not denied. The defendant No. 1- Harvinder Singh tried to, however, qualify his non-denial.

58. The plaintiff has further asserted that from the answers to Interrogatory Question Nos.15 to19, it is evident that defendant No.1-Harvinder Singh has no document or material to establish any right whatsoever in respect of the suit shops.

59. The defendant No.1-Harvinder Singh in his reply to the Legal Notices dated 23.01.2020 sent by the plaintiff through his Advocate, has made wild divergent claims of equitable mortgage, ownership, adverse possession, bequest and possessory title.

60. It is further claimed that there are general admissions made by the defendant No. 1-Harvinder Singh in the Written Statement. The defendant No. 1-Harvinder Singh has attempted to take diverse grounds in his Written Statement such as: (a) He is beneficiary of bequest of the suit property on the basis of piece of paper which was written sometime prior to 05.07.2009; (b) That the documents of title of suit flat and shops had been given to his father as an equitable mortgage in respect of loan of Rs.8,00,000/- given by his late father to the deceased and that his late father had transferred the mortgage to the defendant;

(c) That he has perfected the title through adverse possession;

(d) That there is a complete ouster of the deceased from the suit flat and the suit shops since the date of creation of equitable mortgage which has been claimed to have been created sometime in 1993-94 in respect of suit flat and in the years 1996 and 2000 respectively in respect of the two suit shops.

61. Thus, by way of present application, the applicant/plaintiff seeks the following prayers on the basis of the admissions made by the Defendant NO. 1-Harvinder Singh in his Written Statement: - “a. Pass an order allowing the present amendment application, and to decree the Suit against defendant No. 1 in terms of Prayer (a), Prayer (b), Prayer (c), Prayer (d), Prayer (e), and Prayer (i) of the Plaint; and b. Pass and order allowing the Plaintiff to continue the Suit against defendant No. 1 for the remaining prayers, as also against defendant No. 2; c. Direct the defendant No. 1 to forthwith comply with the Decree in terms of Prayer (a), Prayer (b), Prayer (c), Prayer (d), Prayer (e), and Prayer (i) of the Plaint.”

62. Per Contra, the defendant No. 1-Harvinder Singh in his reply to the Application under Section XII Rule 6 of CPC, 1908 has denied that there is any admission made either in the Written Statement or in the Interrogatories.

63. It is claimed that the defendant No. 1-Harvinder Singh has a perfected title in the suit flat and the suit shops and that there are no admissions which may entitle the plaintiff to a Decree on Admissions.

64. The defendants have raised objections which go to the root of the case and the defence set up requires recording of evidence for determination of the issues and hence, it would not be appropriate to exercise the discretion under Order 12 Rule 6 CPC. Reliance is placed upon S.M. Asif v. Virender Kumar Baja (2015) 9 SCC 287 Krishan Das Choudhary vs Rajesh Alias Raj Neutral Citation No.: 2022/DHC/003088, Himani Alloys Limited vs Tata Steel Limited, (2011) 15 SCC 273, Delhi Jal Board v. Surendra P. Malik, (2003) 104 DLT and Payal Vision Ltd. v. Radhika Chaudhary, (2012) 11 SCC 405, in support of the contentions raised.

65. In the Written Submissions filed by the plaintiff, in support of the Application under O.XII Rule 6 C.P.C., reliance has been placed on Bajaya v. Gopikabai & Anr (1978) 2 SCC 542, Omprakash & Ors v. Radhakrishnan & Ors (2009) 15 SCC 66 Bhagat Ram v. Teja Singh, (2002) 1 SCC 542 and Maria Sequeira v. Erasmo (2012) 5 SCC 370 to buttress the arguments advanced.

66. Submissions heard and record perused.

67. By way of present Suit, the plaintiff has sought possession, declaration, mandatory and permanent injunction and recovery of arrears of rent, as the brother of the deceased husband (Shri Jagmohan Singh Bakshi) Smt. Mohindar Bakshi (since deceased), in the capacity of the sole Executor under the Will dated 15.06.2009 Smt. Mohindar Bakshi.

68. The plaintiff has claimed that there were three properties i.e., the suit flat and the suit shops, which had been acquired by Late Smt. Mohindar Bakshi from the sale of the properties of her husband, Late Shri Jagmohan Singh Bakshi i.e., agricultural lands and house in Bijnour, Uttar Pradesh.

69. However, Smt. Mohindar Bakshi had died on 24.10.2018, issueless. Allegedly, Smt. Mohindar Bakshi during her lifetime had executed an unregistered Will dated 15.07.2016, wherein the plaintiff had been named as the sole Executor and bequeathed the suit flat and shops to the plaintiff.

70. On the basis of this purported Will, the plaintiff has sought the possession, declaration, mandatory and permanent injunction and recovery from the defendant No. 1-Harvinder Singh, the nephew of the deceased Smt. Mohindar Bakshi, who is allegedly in illegal occupation of the suit flat and shops.

71. It is claimed that the defendant No. 1-Harvinder Singh had got into the possession of the suit flats and the suit shops by making a request to Late Smt. Mohindar Singh, his aunt, who, on humanitarian ground, had permitted him to run his kiarana business from the suit shops and had inducted him as a tenant in the suit flat.

72. The plaintiff has further claimed that the defendant No. 1-Harvinder Singh, all throughout, has been in occupation of the suit properties in the capacity of a tenant which he failed to vacate on expiry of the Rent Agreement dated 21.05.2018, but he has continued to be in the permissive possession of the suit flat as well as of the suit shops.

73. The plaintiff has further asserted that because the suit flat and the suit shops had been acquired from the funds realised from the sale of the agricultural lands and house in Bijnour, Uttar Pradesh of husband of Smt. Mohindar Bakshi, in terms of Sections 51 and 52 of the Act, 1925, the plaintiff being the Class-II legal heir of Late Smt. Mohindar Bakshi along with her third brother, since deceased, is entitled to inherit the suit flat and the suit shops as Class-II legal heir, even if the Will dated 15.07.2019 is not proved in accordance with law.

74. The defendant No. 1-Harvinder Singh, on the other hand, has denied that he got inducted into the suit flat as well as into the suit shops as a tenant, but he has claimed that he has been enjoying the suit properties since 1996 and 2000. According to him, in the year 1993-1994, Late Smt. Mohindar Bakshi had taken loans from the father of the Defendant No. 1 i.e. Sh. Harjit Singh of about 8 lacs and she handed over the title documents of the suit flat as well as commercial shops by creating an equitable mortgage in the year 1996 and 2000 November in favour of the father of Sh. Harjit Singh and subsequently, the father of the Defendant No. 1 handed over the said original documents and even the mortgage loan was transferred in the name of defendant No. 1-Harvinder Singh in the presence of the deceased as per instructions of the deceased. Thus, the defendant No. 1-Harvinder Singh has been enjoying the suit flat and the suit shops in the capacity of an owner and there was complete ouster of Sh. Mohindar Bakshi.

75. The defendant No. 1-Harvinder Singh has denied that he was inducted in the year 2013-15 as a tenant and has claimed that all the Rent Deeds etc., relied upon by the plaintiff were sham documents created for the tax purposes by Late Smt. Mohindar Bakshi.

76. The defendant No. 1-Harvinder Singh has asserted that he has acquired the right in the suit flat and in the suit shops by virtue of a Handwritten Will/MoU dated 05.07.2009. Moreover, the defendant No. 1-Harvinder Singh in his open possession is enjoying the suit properties since 1996 and 2000 and he has become the owner by way of adverse possession.

77. Though, the plaintiff in the present application has relied upon the Rent Deeds, the cheques dishonoured statement to claim that it is clearly evident that the defendant No. 1-Harvinder Singh had got inducted as a tenant. However, there is no clear and unequivocal admission by the defendant No. 1-Harvinder Singh about his status in these suit properties ever being that of a tenant or that he had paid the rents; rather he has taken the specific defence that these are fabricated documents created purely for the purpose of income tax.

78. The entire claim of the plaintiff is based on an unregistered Will dated 15.07.2016 to claim that he has exclusively acquired ownership of these suit properties. The defendant No. 1-Harvinder Singh has nowhere admitted the genuineness or the authenticity of the said Will dated 15.07.2019. Thus, this un probated Will dated 15.07.2016, on which the plaintiff rests his entire claim, is required to be proved in accordance with law. Though the plaintiff has taken an alternate plea that even if the Will dated 15.07.2016 is not substantiated, then he is still entitled to have a right in these suit properties, this can only be determined as an alternate plea to establishing the genuineness and authenticity of the Will is decided. The claims of the plaintiff to claim ownership of the suit properties on the basis of the Will dated 15.07.2016 are disputed facts which are required to be proved during the trial.

79. Secondly, the plaintiff has also taken a plea that even if this Will dated 15.07.2016 is not accepted, he is entitled to inherit these suit properties, being the Class-II legal heir of Late Smt. Mohindar Bakshi. All these are issues which require trial.

80. Thirdly, defendant No. 1-Harvinder Singh, in fact, is claiming the ownership of these suit properties on the basis of a Handwritten Will/MoU dated 05.07.2009 and in the alternate on the plea of adverse possession. Also, he is claiming that though rent documents were created for the purpose of Income Tax and were never acted upon by the deceased. He has also taken the defence of adverse possession by claiming to be in possession of the suit properties since 1996 and 2000. This aspect is also a matter of trial and cannot be determined without recording of evidence.

81. It is quite evident and apparent that picking up the sentences selectively from the Written Statement or the documents/ interrogatories to claim that there are unequivocal and clear admissions made on behalf of the defendant No. 1-Harvinder Singh, is completely fallacious and not tenable.

82. In conclusion, it is held that there are no clear, unambiguous and unequivocal admissions made by the defendant No. 1-Harvinder Singh in his Written Statement which would entitle the plaintiff to a Decree on Admissions.

83. The disputed facts and issues have been raised by both the parties which require a proper trial.

84. In view of the foregoing discussions, there is no merit in the present Application under Order XII Rule 6 C.P.C. 1908 seeking decree on admissions, and the same is hereby dismissed.

85. List before the Roster Bench, subject to Orders of Hon’ble the Acting Chief Justice, on 02.09.2024.

JUDGE AUGUST 30, 2024 S.Sharma/va