Jagmal Singh v. Naresh Kumar & Ors.

12. Whether any of the suit properties are self acquired property of any of the defendants as a alleged in para VI of P.O.

13. Relief.”

5. The evidence of the Plaintiff was closed on 27th September 2014 and the evidence of the Defendant was to be commenced. At that stage, prior to the commencement of the Defendant’s evidence, an application under Order VII Rule 14 of CPC was filed by the Plaintiff, seeking to place on record approximately forty (40) Sale Deeds and some Bank Statements, in order to prove that the predecessor in interest had actually sold various joint family properties and purchased further new properties. The said application was dismissed by the Trial Court on 4th May, 2017.

6. A challenge to the said dismissal by the Trial Court was raised before the ld. Single Judge of this Court in CM(M) 844/2017. Vide order dated 4th February, 2019, the said challenge also failed. The operative portion of the said order of the ld. Single Judge reads as under: “xxx xxx xxx xxx During the course of submissions that have been made on behalf of the respondents apart from contending that that averments made in the application dated 27.04.2017 filed on behalf of the petitioner out of which the impugned order arises are wholly vague, the copies of the documents that have been placed on record by the petitioner herein which are sought to place on the record in the form of sale deeds relate to the year 1986 and in several of them i.e. Registration No.9069 Addl. Book No.I, Volume No.5658 on pages 92 to 96 dated 06/11/1986, Registration No.9068 Addl. Book No.I, Volume No.5658 on pages 87 to 91 dated 06/11/1986, Registration No.9067 Addl. Book No.I, Volume No.5658 on pages 82 to 86 dated 06/11/1986, Registration No.9066 Addl. Book No-.I, Volume No.5658 on pages 77 to 81 dated 06/11/1986, Registration No.9065 Addl. Book No.I, Volume No.5658 on pages 72 to 76 dated 06/11/1986, Registration No.9073 Addl. Book No.I Volume No.5658 on pages 109-112 dated 06/11/1986, Registration No. 9075, Addl. Book No.I, Volume No.5658 on pages 117 to 121dated 06/11/1986, Registration No.9076 Addl. Book No.I, Volume No.5658 on pages 122 to126 dated 06/11/1986, Registration No. 9077Addl. Book No.I, Volume No.5658 on pages 127 to 131 dated 06/11/1986, Registration No.9078 Addl. Book No.I, Volume No.5658 on pages 132 to 135 dated 06/11/1986, Registration No.9079 Addl. Book No.I, Volume No.5658 on pages 136 to 139 dated 06/11/1986, Registration No.9080 Addl. Book No.I, Volume No.5658 on pages 140 to 143 dated 06/11/1986, Registration No.9059 Addl. Book No.I, Volume No.5658 on pages 44 to 48 dated 06/11/1986, Registration No.9058 Addl. Book No.I, Volume No.5658 on pages 39 to 43 dated 06/11/1986, Registration No.9057 Addl. Book No.I, Volume No.5658 on pages 34 to 38 dated 06/11/1986, Registration No.9056 Addl. Book No.I, Volume No,5658 on pages 29 to 33 dated 06/11/1986, the applicant/petitioner herein is himself a signatory thereto and thus his contention to the effect that he was not aware of the said documents cannot be accepted which is apparently borne out to be correct on a perusal of the copies of the documents placed on record. The Impugned order indicates that the suit had been filed in the year 1992 and the issues in the matter were framed on 24.03.2003. Even taking into account the factum that the amendments to the CPC come into play w.e.f 01.07.2002, nevertheless issues in the matter were framed as far back as on 24.03.2003, the plaintiff’s evidence was closed on 27.09.2014 and thereafter the evidence of the defendants has commenced. Apparently, there is no infirmity in the impugned order in as much as there exists no ground to condone the laxity of the petitioners. The petition and the accompanying application CM APPL.28087/2017 are declined. The interim order dated 18.01.2018 is vacated.”

7. This order was assailed before the Supreme Court and the Supreme Court vide order dated 1st April, 2019 dismissed the said SLP being SLP(C) No. 6552/2019. However, the Supreme Court also gave liberty to the Plaintiff, for availing his remedies for the purposes of rebuttal as may be permissible. The Supreme Court’s order reads as under: “ We are not inclined to interfere with the impugned judgment and order passed by the High Court. The Special Leave Petition is dismissed accordingly. However, this dismissal will not come in the way of the Petitioner to take recourse to other appropriate remedies as may be permissible, in law, including for the purpose of rebuttal. Pending applications, if any, stand disposed of.”

8. Thereafter, the Plaintiff filed an Application before the Trial Court, seeking permission to lead rebuttal evidence. The primary contention in the said application was that out of the issues which were framed, on Issue no.6, the onus was on the Defendant, and hence, since the evidence of the Plaintiff was only closed in affirmative on 27th September 2014, the Plaintiff is entitled to lead evidence in respect of these Sale Deeds and the Bank statements in rebuttal.

9. This application was dismissed by the Trial Court vide the impugned order dated 22nd August 2019, which is under challenge before this court.

10. Mr. Jay Savla, ld. Senior Counsel, appearing on behalf of the Plaintiff, contends that the Plaintiff did not have the Sale Deeds and the Bank Statements in his possession at the time when the suit was filed or when evidence in the affirmative was led. However, prior to the commencement of the Defendant’s evidence, the Plaintiff filed an application for filing the said documents, which was rejected by the Trial Court. He submits that under Order XVIII Rule 3 of CPC, when there are several issues which were framed and the onus is on the Defendant qua some of the issues, the Plaintiff would have the right to lead rebuttal evidence. Accordingly, he submits that the said Sale Deeds were extremely relevant to prove the fact that the predecessor in interest – Mr. Hira Lal, had sold the joint family properties and had purchased various other properties and hence the same ought to be liable to be partitioned.

11. Mr. Savla, ld. Senior Counsel, further submits that the Bank Statements would also be relevant to prove that the consideration that was received from sale of HUF properties, was utilised for the purpose of purchase of the properties by the Defendant, which are claimed to be selfacquired. He, accordingly, prays that in terms of the liberty granted by the Supreme Court, his client ought to be permitted to prove the Sale Deeds as also the Bank Statements on record, in rebuttal evidence.

12. On the other hand, Mr. Ankit Jain, ld. Counsel appearing for the Respondent Nos.[1] to 6/Defendants (hereinafter, “Defendants”), submits that in Issue No. 6, the Plaintiff has had an opportunity to show that the properties in question are joint family properties. Since the Plaintiff has availed of that opportunity, the opportunity to place rebuttal evidence ought not to be granted. He further submits that the question as to whether the said documents which are being pressed can or cannot be filed, has attained finality in view of the earlier round of orders which have been passed in the application under Order VII Rule 14 of CPC. Thus, the same evidence cannot now be surreptitiously sought to be introduced by way of rebuttal evidence under order XVIII Rule 3. He further submits that the manner in which the Plaintiff is purporting to read the order of the Supreme Court dated 1st April 2019, in SLP(C) No. 6552/2019, is misleading. He submits that the Plaintiff himself is a witness and executor to several Sale Deeds and had complete knowledge of the Sale Deeds, however he chose not to lead evidence in respect thereof, when given a chance to lead evidence in affirmative.

13. Mr. Ankit Jain, ld. Counsel, further submits that all the Sale Deeds which are sought to be relied upon by the Plaintiff for the purposes of rebuttal evidence, have been signed by the Plaintiff himself. He submits that, in fact, certified copies of all these documents were obtained by the Plaintiff in April, 2017, when the application was filed.

14. Finally, Mr. Jain, ld. Counsel, submits that submits that the suit had been filed in 1992, and has been going on for almost 30 years due to the delays which are being caused by the Plaintiff himself. Accordingly, he submits that the Defendants cannot be made to defend this suit in an indefinite manner like this. He submits that the Application for bringing these documents on record has been dismissed till the Supreme Court and the only liberty that the Supreme Court had given to the Plaintiff was to lead rebuttal evidence, which clearly cannot be permitted to be used to bring the same documents on record, the Application in respect of which was dismissed.

15. Heard ld. Senior Counsel and Counsel for the parties, and perused the record.

16. The chronology of events in this case, set out above, in relation to the filing of the suit, and the Application for Additional Documents which was dismissed by the Trial Court and upheld till the Supreme Court, are not in dispute between the parties.

17. As per the order of the Supreme Court, extracted above in paragraph 7, the Plaintiff was permitted to avail of his remedies, as may be permissible in law, including for the purpose of rebuttal evidence. Thus, the only question that has to be examined by this Court is as to whether the Plaintiff can be permitted to lead any evidence in rebuttal, in accordance with law, and whether the Sale Deeds and the Bank statements, can be allowed to be filed on record.

18. For the said purpose, the issues which were framed by the Trial Court would be relevant to be noted. All the Issues framed by the Trial Court in the suit, have been extracted above in paragraph 4. However, presently, it is relevant to deal with Issue nos. 6 and 12, which read as under:

19. Insofar as Issue no.6 is concerned, clearly it is the case of the Plaintiff, before the Trial Court, that the suit properties form part of Hindu Joint Family Properties. Thus, the notation “OPD”, which appears at the end of Issue, is a typographical error. The onus or the burden of proof, clearly had to be on the Plaintiff, and accordingly, the said issue should be read as “OPP” instead of “OPD”.

20. Insofar as Issue no. 12 is concerned, the case of the Plaintiff before the Trial Court is that the properties are Hindu Joint Family Properties, but the case of the Defendants is that they are self-acquired properties. On this issue, the onus or the burden of proof, is on both the parties as the onus has not been mentioned in the issue. The Defendants’ assertion in pleadings is that these are self-acquired properties. Accordingly, the Plaintiff may be entitled to show to the Court that the said properties are not self-acquired, and therefore, in that sense, the Plaintiff could be given a right to place the documents it seeks to place on record and prove the same.

21. This Court has also perused the cross examination, which was conducted by the Plaintiff, i.e., the cross examination of DW[1], dated 5th July

2017. A perusal of the said cross examination shows that the Plaintiff put a question to the Defendants in respect of these properties. However, unfortunately, the said question was not allowed to be raised by the Trial Court. The said question and the trial Court’s observations, in respect thereof, read as under: “DW-1 Statement of Sh. Naresh Kumar S/o. Late Sh. Hira Lal (Recalled for further cross-examination after 10.04.2017). On SA Xxxxxx by Sh. Govind Narayan Kaushik, Ld. Counsel for plaintiff. The plaintiff is my uncle (Chacha). The name of my grandfather is Late Sh. Bhagwan Sahay. I am having only one Chacha and three Tauji. I am having only one Bua namely Smt. Sumitra Devi. It is correct that after demise of my grandmother, only six legal heirs were left. It is incorrect to suggest that my grandfather was owner of the entire suit property. Ques: I put it to you that on 06.11.1986, your father and other LR's excluding Smt. Sumitra had sold the agriculture land as below i.e. (1) admeasuring 13 bigha in khasra no. 727 min (5- 6), 726 min (3-5), 441 min (4-9) situated in Kapashera village, Tehsil Mehrauli, New Delhi sold by the plaintiff and Sh. Rai Singh, Sardar Singh, Roshan Lal, Hira Lal for a consideration of Rs. 40,000/- in favour of Sh. Bhagwan Dass Khanna S/o Late Sh. Thakur Dass Khanna; (2) on the same day i.e. 06.11.1986 another property admeasuring 13 bigha khasra no.727 min (5-6), 726 min (3-5), 441 min (4-9) situated in Kapashera village, Tehsil Mehrauli, New Delhi, the plaintiff and Sh. Rai Singh, Sardar Singh, Roshan Lal, Hira Lal sold 1 /5th share in favour of Smt. Meena Khanna w/o. Sh. Ramesh Dass Khanna vide registration NO. 9068, additional book no.1, Volume no. 5658, pages 87 to 91 dated 06.11.1986 for a consideration of Rs. 40,000/- in favour of Smt. Meena Khanna w/o Sh. Ramesh Dass Khanna; (3) on the same day i.e. 06.11.1986, the plaintiff and sold the ancestral property admeasuring 13 bigha khasra no.727 min (5-6), 726 min (3-5), 441 min (4-

9) having 1/5th share situated in Kapashera, village, Tehsil Mehrauli, New Delhi for a consideration of Rs. 40,000/- in favour of Smt. Geeta Khanna w/o Sh. Ganesh Dass Khanna vide registration no. 9067, additional book no. 1, volume no. 5658, pages from 82 to 86 dated 06.11.1986; (4) on the same day i.e. 06.11.1986, the plaintiff and sold the ancestral property admeasuring 13 bigha khasra no.727 min (5-6), 726 min (3-5), 441 min (4-

9) having 1/5th share situated in Kapashera village, Tehsil Mehrauli, New Delhi for a consideration of Rs. 40,000/- in favour of Smt. Neelam Khanna w/o Sh. Naresh Dass Khanna vide registration no. 9066, 77 to 81 dated 06.11.1986; (5) on the same day i.e. 06.11.1986, Sh. Rai Singh, Sardar Singh, Roshan Lal, Hira Lal, Jagmal Singh (plaintiff), all sons of Sh. Bhagwan Sahai sold the ancestral property admeasuring 13 bigha khasra NO. 727 min (5-6), 726 min (3-5), 441 min (4-9) having 1 /5th share situated in Kapashera village, Tehsil Mehrauli, New Delhi for a consideration of Rs. 40,000/- in favour of Sh. Adarsh Khanna s/o Sh. Mahesh Dass Khanna vide registration no. 9065, 72 to 76 dated 06.11.1986; (6) on the same day i.e. 06.11.1986, Sh. Rai Singh, Sardar Singh, Roshan Lal, Hira Lal, Jagmal. Singh ancestral property admeasuring 11 bigha 6 biswas, khasra no.724 min (2-3), 719 min (0-12), 461 min (2-19), 462 min (0-16), 460 (4- 16) having 1/4th share situated in Kapashera village, Tehsil 50,000/- in favour of Master Saurabh Khanna S/o Sh. lnder Khanna through its father and natural guardian Sh. lnder Khanna vide registration NO. 9073, additional book no. 1, volume no. 5658, pages from 109 to 112 dated 06.11.1986; (7) on the same day i.e. 06.11.1986, Sh. Rai Singh, Sardar Singh, Roshan Lal,_Hira Lal, Jagmal Singh ancestral property admeasuring 11 bigha 6 biswas, khasra. no. 724 min (2-3), 719 min (0-12), 461 min (2-19), 462 min (0-16), 460 (4- 16) having 1/4th share situated in Kapashera village, Tehsil 50,000/- in favour of Master Saurabh Khanna S/o Sh. lnder Khanna through its father and natural guardian Sh. Inder Khanna vide registration NO. 9075, additional book no. 1, volume no. 5658, pages from 117 to 121 dated 06.11.1986; At this stage, counsel for the defendant is asked as to how many similar questions would be asked to the witness and he answered that there are 33 more questions like this. Court observation: The questions are being asked from the documents which have not been taken on record and the application of the plaintiff was dismissed vide order dated 04.05.2017. The plaintiff cannot be allowed to circumvent the order dated 04.05.2017. Moreover, there are no pleadings in the plaint pertaining to the aforesaid questions and thus, the aforesaid questions as well as the prospective questions are disallowed. It is incorrect to suggest that my father and my chacha and tauji sold the ancestral property situated at Village Kapashera, Tehsil Mehrauli, New Delhi. Voltr. They sold their individual shares. I do not recollect whether any property was purchased in the name of my mother in the year 1986. It is correct that some properties were purchased in the name of my mother during the year 1986 to 1990, however, the same were purchased from the individual share of my father. My mother used to assist my father in agriculture acts. I do not recollect whether my mother was having a bank account in the year 1986-

87. It is wrong to suggest that on 06.11.1986 the joint properties situated at Village Kapashera, Tehsil Mehrauli, New Delhi, plaintiff, Rai Singh, Sardar Singh, Roshan Lal and Heera Lal were sold by them and on the same day and from the sale consideration of the aforesaid properties, six properties situated at Village Kapashera, Tehsil Mehrauli, New Delhi were purchased in the name of Smt. Jagwati W/o. Late Sh. Heera Lal and one property in favour of Birmha Devi W/o. Roshan Lal.”

22. A perusal of the above cross examination clearly shows that the Plaintiff made an attempt to cross examine the Defendant, in respect of the Sale Deeds of 1986. However, the question was disallowed by the trial court, on the premise that the said documents were not permitted to be taken on record and the application under Order VII Rule 14 of CPC was dismissed.

23. Clearly, this was an error on the part of the Trial Court, inasmuch as the Plaintiff was entitled to put a question to the witness, as to whether there existed Sale Deeds of 1986/1987 which were executed by the Defendant and his parents. If the Defendant had admitted the existence of the Sale Deeds, the Plaintiff may have even had the option of confronting the Sale Deeds to the witness and attempt to defeat his case that they were self-acquired properties. It is the settled position in law, that questions that are relevant to the issues raised ought to be permitted to be put to witnesses. Merely on the ground that the documents were not taken on record, the question could not have been disallowed. The same has been recognized by a ld. Single Judge of this Court in Subhash Chander v. Bhagwan Yadav (CM(M) NO. 171/2009, decided on 25th November 2009), where it was held that:

24. Under these circumstances, this Court is of the opinion that the entire controversy can be cut short by giving one opportunity to the Plaintiff to put the questions related to the sale deeds and bank statements, to DW[1] - Shri Naresh Kumar, who may be recalled as a witness. Accordingly, the following directions are issued:

(i) DW1- Shri Naresh Kumar shall appear before the ld. Trial Court, on a date fixed by the Trial Court. On the said date, the Plaintiff would be entitled to cross examine DW[1], in respect of the Sale Deeds of 1986/1987 and the bank statements.

(ii) If any documents are to be confronted to the said witness, the same shall be kept ready, and only documents which are either certified copies or original in nature, shall be permitted to be confronted.

(iii) During the said cross examination, no other questions, apart from the questions in relation to the Sale Deeds of 1986/1987 and the consideration amounts received from the said Sale Deeds, shall be permitted to be asked or raised.

(iv) The cross examination shall be concluded within a period of two hours.

(v) Immediately thereafter, the matter would proceed to final arguments.

25. After the order was dictated, ld. Counsel for the parties, on instructions from their clients, consent to the directions which have been passed today. Accordingly, this order is with consent of parties.

26. Considering the fact that the suit was instituted in 1992, it is directed that the final adjudication of this suit shall be concluded by 31st March 2022.

27. Parties shall appear before the ld. Trial Court for fixing the date for the cross examination of DW[1] on 30th September 2021.

28. With these observations, the present petition along with all pending applications is disposed of.

PRATHIBA M. SINGH JUDGE SEPTEMBER 21, 2021 dj/mr/Ak